Appeal deadline looming - please help

Umkomaas

The key issue with a hire/lease/company vehicle is did the PPC forward copies of the hire/lease documents as demanded by PoFA (Schedule 4, paras 13 and 14) to hold the hirer (day to day keeper) liable? I'll eat my leg if they did.

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

So if you've received a POPLA code, use that and your very first appeal point will be based on the above.

Here's one case where POPLA have upheld the appeal precisely on the above grounds. Read it and use it to help you develop your own appeal. Let us see your draft before submission, don't miss your POPLA deadline.

https://forums.moneysavingexpert.com/discussion/6033964/parking-eye-10-min-overstay-hired-vehicle

https://forums.moneysavingexpert.com/discussion/comment/76231517#Comment_76231517

The NEWBIES FAQ sticky, post #3 will walk you through the POPLA process.

EDIT TO ADD

KeithP beat me to it - but there isn't a Rizla between our respective advice.

Ed_Winchester

I have just appealed to POPLA. Should I put my wording on here and if so - what info do I need to block out etc? Thanks

Le_Kirk

Ed_Winchester wrote: »

I have just appealed to POPLA. Should I put my wording on here and if so - what info do I need to block out etc? Thanks

It is normal to post your POPLA appeal (or defence if/when it comes to it) on here BEFORE you send it. We/you can do nothing about it now. When you win the appeal (being positive here) there is a thread on the front page of this forum for posting POPLA decisions. Good luck.

KeithP

Ed_Winchester wrote: »

I have just appealed to POPLA.

But on 3rd September Umkomaas said:

Let us see your draft before submission...

Ed_Winchester

Apologies as I didn't realise there was a page 2 on this thread so have only just seen the recent suggestions like putting a draft up first.

Here is the main wording from my appeal to POPLA

"A) Euro car parks failed to comply with the strict requirements of POFA

In the case of a PCN issued in respect of a hire/lease vehicle, in order to have the right to use the provisions of Schedule 4 of POFA to claim unpaid parking charges from a vehicle's hirer, an operator must:

1) deliver a Notice to Keeper to the vehicle-hire firm in full compliance with POFA, Schedule 4, Paragraph 8 or 9 (as the case may be);

2) be provided with the documents specified under POFA, Schedule 4, Paragraph 13 (2) and;

3) deliver a Notice to Hirer to the vehicle's hirer in full compliance with POFA, Schedule 4, Paragraph 14.

Euro car parks has failed to comply with Schedule 4 of POFA.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4, POFA; the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge are set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in paragraph 13(2) (i.e.
(a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b) a copy of the hire agreement and
(c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)).

Euro car parks did not provide me with a copy of any of these documents.

Further, Euro car parks’s Notice to Hirer did not comply with the requirements of Paragraph 14(5) including:

?Contrary to the requirements of Paragraph 14(5)(a), Euro car parks’s PCN to me did not inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the Notice to Keeper) may be recovered from the hirer;
Contrary to the requirements of Paragraph 14(5)(b), Euro car parks’s PCN to me did not refer the hirer to the information contained in the Notice to Keeper; Contrary to the requirements of Paragraph 14(5)(c), Euro car parks’s PCN to me did not warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under Paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid.

Please don’t presume that I am appealing this PCN on behalf of the driver. For the avoidance of doubt, I am simply exercising my right as hirer to appeal this PCN in my own name in exactly the same way as any other vehicle keeper or hirer is entitled to do.



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 or hirer appellant, yet no POFA 'keeper/hirer 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. Even a hired vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured, which can be under their own fully comprehensive policy. 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. 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 parking charge cannot be enforced against a hirer without a valid Notice to Hirer with the accompanying documentation required under statute.

As the hirer 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 because the fact remains I am only the hirer, and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a hirer appellant to be deemed to be the liable party.

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.

Furthermore, the vital matter of full compliance with the POFA 2012 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 hirer of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against Euro car parks 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.''

C) Euro car parks has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.

As this operator does not have proprietary interest in the land then I require that they produce an un-redacted 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

D) The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by Euro car parks v. Beavis.

This situation is an 'ordinary' contract, a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a faulty set of machines and can be very easily distinguished from the case of Euro car parks Ltd v Beavis. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'Euro car parks Ltd v Beavis' it was held: ‘When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary contracts with a transaction and tariff: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case for the time actually parked and the driver left before expiry of the ticket - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position: - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

E) The signage was not clear, compliant or the wording on it easily visible which clearly contravenes the relevant law.

Conclusion

I, as the hirer have demonstrated the clear failures of Euro Car Parks and therefore request the parking charge notice be cancelled. They have failed to comply with the strict requirements of POFA in order to be able to hold the hirer of the vehicle liable under schedule 4 as they have not provided the correct documentation in accordance with paragraph 13 (2). This point alone is reason enough for the parking charge notice to be cancelled however in order to demonstrate numerous failures by them, I have also detailed them within this document, if needed, but I am not a Solicitor so apologies if I’m mistaken about any points.

Mr W – hirer/lessee."

ihelp

When you take up a lease I am pretty sure just like renting a vehicle you sign to say you will pay all parking charges.

In addition to this the parking companies by law can request the driver of the vehicle details from the lease company.

Appeals rarely work on the grounds that either your guilty or not but worth a chance.

You can’t park anywhere without some sort of time restrictions. Just thank your lucky stars it wasn’t a council parking space or additional charges and bailiffs would be on their way.

If your serious about fighting it. Then it’s best to wait and see if they are prepared to take you to court over it.

They rarely pursue single ticket claims in court as they prefer repeat offenders who ignore the warnings

It’s has been proven in high court that £60:00 is not an excessive amount, hence the reason for that figure being set. Even the council charge that amount so be careful going down that avenue as a defence as I don’t believe it is a very good one.

Umkomaas

When you take up a lease I am pretty sure just like renting a vehicle you sign to say you will pay all parking charges.

Nope, most talk of traffic offences and penalties. Vanishingly few mention parking charges. The devil is in the detail for lease/hire companies.

In addition to this the parking companies by law can request the driver of the vehicle details from the lease company.

Nonsense. There is no such law - and even then, how would the lease company know who the driver was?

Appeals rarely work on the grounds that either your guilty or not but worth a chance.

The term 'guilty' relates to a criminal case. Private parking charges are no such things - they are unequivocally civil cases.

Just thank your lucky stars it wasn’t a council parking space or additional charges and bailiffs would be on their way.

Quite the reverse I'm afraid. Council tickets have a much fairer appeals process, and their penalties (outside of London) are considerably lower than private parking charges. There is no way a council can simply instruct bailiffs to 'be on their way' to pursue a parking penalty.

If your serious about fighting it. Then it’s best to wait and see if they are prepared to take you to court over it.

Euro Car Parks have never taken anyone to court. I don't think they'll be starting with a forum-assisted case.

They rarely pursue single ticket claims in court as they prefer repeat offenders who ignore the warnings

ECP never have, single or multiple tickets, but this forum is awash with single ticket court claims from right across the PPC spectrum.

Just so you know!

MistyZ

ihelp wrote: »

If your serious about fighting it. Then it’s best to wait and see if they are prepared to take you to court over it.

Really bad advice. I would say that the method for appealing hire car PCNs has been thoroughly tried & tested on here, it's very sound. Many, many folk are successful at the first appeal stage using one of Edna Basher's templates. And, if not, there's a tremendous success rate at the POPLA stage if the forum's advice is followed to the letter.

OP, I've read the POFA section of your POPLA appeal and it seems fine. Good luck.

Ed_Winchester

URGENT

POPLA have given me 7 days to comment on Euro car parks' response.

They have sent me a 30 plus page response which as a first-timer dealing with this is rather overwhelming but i'm sure a lot of it is a cut and paste exercise for them.

My car is on a personal lease via Lex but they say they on this document they got the DVLA, not Lex. It includes a copy of the PCN which showed photos of my number plate only with the alleged times of entry and exit on. They then say in this new doc that DVLA gave them Lex's details who then gave them mine.

You may recall that ECP only sent me a PCN and have never sent me any docs relating to the lease.

The new doc also says I confirmed to be the driver and it's possible in error that I chose the "driver/ keeper" option in error on ECP's online form drop down as I didn't know what I was doing at the time, but I have definitely never put who was driving in any correspondence. Interestingly, they have said I am the "registered keeper" and the liability remains with me which I think is the wrong terminology based on what some of you have said.

Regarding me not saying who the driver is, they have included in the new doc and photo alleged to be from the car park itself that shows a picture of the driver and the passenger, so does this cause a problem re not saying who the driver was?

They have included a photo of the signage at the car park which shows most of it clearly but there seems to be some small red wording at the bottom that is definitely not legible so does this back up the argument of unclear signage or is the fact most of the wording above that, negate this?

I can't see (but may have missed) comments about lease docs being sent to me which seems to be our main arguing point from other forums as I don't recall getting those.


Finally, they include several photos of the car park and surrounding area and various signs, some of which were there and some weren't. Most photos are clear and taken in the daytime but at least a couple are taken at night and are barely visible at all so not sure if that helps again?

We did visit in the evening but it wasn't dark when we arrived.

So, what should I say in my comments back to POPLA please as I really don't know what to do?

Many thanks for help on this and your help previously.

Coupon-mad

It's not urgent, but you only have 6 days and the NEWBIES thread already tells you all about this comments stage. You do know what to do. The forum tells you already.

Only yesterday I posted in reply to someone at the same stage with a ParkingEye lease case, who needed to comment to make sure POPLA realised that the PCN had not documents attached.

Look at my posts and find it. Posters just posting on their own threads, are setting themselves up to fail. Never ceases to amaze me that us regulars read all posts every day yet newbies (who actually need to) don't!

AND it's only ECP so even if you lose...you know the rest if you've read any ECP POPLA lost threads. We assume you did that search and have been reading a lot of threads, and just missed my reply yesterday about the same subject.