Disputing evidence submitted to POPLA by LPS Ltd.

benbecula

Unfortunately, I discovered this advice site too late and I have already made some mistakes. I am at the stage of the POPLA appeal and the parking company (LPS) have submitted their evidence. I am disputing it and challenging it on the grounds of inadequate signage as I could not work out how to pay and could not see any payment machines. There was also no notification of the £100 penalty charge on the signs, so I am arguing against their terms and conditions being displayed adequately and I am arguing that I did not breach any unknown contract as I contacted them at the first opportunity (the next morning) asking how I could pay and offering to pay. Please see below my disputation of their evidence and advise me on whether it is appropriate and suitable. I will also attach my offer to pay and their photos of signs and their dark, hidden machines. It was a car park at a Premier Inn, where I 'overstayed' by 50 minutes.

POPLA evidence rebuttal
I stand by my original appeal in respect of unclear signage and also on not breaching the terms and conditions of an invisible and unknown contract, because of my clear intention to pay by contacting the company at the first opportunity (the next morning). I also notice from the photos submitted that the machines are in a dark, shady corner and are black, not like the highly visible, bright yellow ones at Heathrow Airport for example. I intended and attempted to pay, but could not find a payment machine.
The operator states:
Signage clearly states that the pay stations are located within the main entrance of The Premier Inn. This can be seen in our signage document which has been attached to the case.
As a non-resident, the non-resident section of the signs, (which is the only bit relevant to me), clearly states ‘Please pay for your parking on departure’ with no mention of where to pay. Having studied the photos, I now see that it does say where the machines are located, but this is above the non-residents section (which I immediately jumped to), lined off from it and in relatively small font. In fact it is clearly in the Resident’s section and therefore looks like a different payment method to the non-residents who pay on exit. According to the non-resident’s section it only says ‘pay on departure’, which is why I was puzzled when there was no machine at the exit barrier. There is also no mention of the sum of the parking charge itself, which is out of all proportion, especially considering my efforts to pay, which were ignored.
The operator states:
The signage informs the drivers of the terms and conditions for parking.
Local Parking Security Ltd are a fully approved member of The British Parking Association (BPA) and as such abide by all current legislation and regulations with regards to parking on private land.
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 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. I believe information regarding the location of the payment machines should also be much clearer and not separated off from the non-residents section of the sign. 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.


The operator states:
As no payment for parking was made, the driver of the vehicle was in breach of the terms and conditions
I believe I was not in breach of the terms and conditions as I was unable to pay on departure (the only terms and conditions I was made aware of by the inadequate signage in respect of non-residents) despite having tried very hard to locate payment machines and contacting the operator at the first opportunity (the following morning) offering to pay and asking them to advise me on how to make that payment.
The operator states:
The terms and conditions for parking, including the parking charges applicable are clearly stated on all of the signage located throughout the car park.
The parking charges are stated, which is why I stated in my offer to pay that I owed £2, but the completely out of proportion and extortionate (punitive, rather than related to any actual loss) parking charge of £100, which is being demanded from me now is not stated at all. 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 and in the case of my appeal, the charge is even higher at £100.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

(Link here)

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.
The operator states:
When parking on private land the motorist freely enters into an agreement to abide by the conditions for parking in return for permission to park.

I entered into an agreement to pay £2 for parking on departure, which I was unable to do, but attempted to do so the next morning by contacting the operator through their website contact form and asking how to pay. If this parking charge notice reflects any actual loss of earnings, it could all have been avoided by accepting my offer of payment.
The operator states:
…. the parking charge notice was correctly issued.
For all the reasons I have stated above, this parking charge notice was not correctly issued. I did not breach any terms of contract that I was made aware of by the signage and have shown and proven (with evidence) my intention to comply with those terms, since I was unable to comply with the requirement to pay on departure.

Many thanks for this great site and for any help you can give me.

MistyZ

Hi.

You only have 2000 characters in which to rebuff the PPC's evidence and you're way over. I think it unlikely that the assessor will follow links. It's perfectly acceptable to use bullet points, abbreviations, short statements.

I don't think the 'no genuine pre-estimate of loss' argument has any mileage since Beavis. Were there any other points raised in the POPLA appeal? Did you identify the driver?

I've not read all of this as you need to shorten it considerably. Wait and see if the more experienced regulars agree that there's no point persevering with the no GPEOL argument. You do make a really good point about the signage photos provided by LPS and, if anything, that will stand out more clearly if worded more snappily e.g. something like: 'LPS's OWN PHOTOS of payment machines show that they are black & in dark corners - driver could not locate them'. I think you can use capitals for emphasis but, for some reason, not italics ....

Incidentally, have you complained to Premier Inn yet?

Coupon-mad

I will also attach my offer to pay and their photos of signs and their dark, hidden machines.

You can't. This evidence had to be with your POPLA appeal, not now. You can't add stuff now or practically re-write a POPLA appeal - you can only comment briefly on their evidence.

You should simply be saying this:

There was also no notification of the £100 penalty charge on the signs,

...and the fact that their evidence (no doubt) shows a sign in daylight, not a true representation of how it was unlit at night (if that is when you arrived there?) and no evidence as to where this purported payment machine was and how driver's attention was drawn to it.

I agree with MistyZ:

You do make a really good point about the signage photos provided by LPS and, if anything, that will stand out more clearly if worded more snappily e.g. something like: 'LPS's OWN PHOTOS of payment machines show that they are black & in dark corners - driver could not locate them'.

I think you can use capitals for emphasis but, for some reason, not italics ...

True.

benbecula

Thank you for your quick and helpful replies. Oops, I read 2000 words, but yes, I see it is 2000 characters. I did name the driver because I was genuinely trying to pay the next morning. I have complained to Premier Inn, but so far have not had much help from them. I have also written to my MP who I believe has written to LPS on my behalf. I did already send in my evidence with the original appeal. I just thought I would have to send it again, but that's fine if I can't.

Here is a copy of the operator's evidence and my new, shortened response. Is this adequate? They also sent photos of signage, machines and the car.

Local Parking Security - EW
Operator Case Summary
We advise that The Bath Road Car Park operates on an Automatic Number Plate Recognition (ANPR) basis. Therefore, the system picks up the vehicle registration entering and exiting the car park. This then calculates the amount of time spent within the car park. The vehicle has entered The Bath Road ANPR car park where payment for parking is required. As no payment for parking was made, the Parking Charge Notice was issued correctly. All car park users are required to pay for parking when parking longer than the 30 minute free period. This includes Premier Inn residents and blue badge holders. We have searched our payment system and vehicle registration AV60 KNH has not paid for their parking on the incident date (23rd July 2019). Attached within this case is our machine back office system. This shows no payment being made for the vehicle. As no payment for parking was made on the 23rd July 2019 and the vehicle was parked for 1 hour 20 minutes (longer than the 30 minute free period), the parking charge notice was correctly issued. The site used to be 2 hours free parking. However, this was changed to 30 minutes in February 2017. Therefore, the 30 minutes free parking has been in place for nearly 2 years. Signage clearly states 30 minutes free parking. When parking longer than this period, payment for parking must be made at the machine before exiting the car park. Signage clearly states that the pay stations are located within the main entrance of The Premier Inn. This can be seen in our signage document which has been attached to the case. The signage upon exiting clearly states that the barrier will open automatically. In addition, the barriers will open even if payment for their duration of stay is not made. We advise that The Bath Road car park is privately owned and managed by Local Parking Security Ltd on a pay on exit basis. This is clearly stated on all of the signage located throughout the car park. The signage informs the drivers of the terms and conditions for parking. As no payment for parking was made, the driver of the vehicle was in breach of the terms and conditions. The legal basis of the Parking Charge Notice is based on the contract entered by drivers who park on private land. The terms and conditions upon which the contract is based is clearly stated on all signage located throughout the car park. When parking on private land the motorist freely enters into an agreement to abide by the conditions for parking in return for permission to park. It is the motorist’s responsibility to ensure that they abide by any clearly displayed conditions for parking. The terms and conditions for parking, including the parking charges applicable are clearly stated on all of the signage located throughout the car park. Local Parking Security Ltd are a fully approved member of The British Parking Association (BPA) and as such abide by all current legislation and regulations with regards to parking on private land. As the vehicle did not make payment for parking and were parked for longer than the 30 minute free period, the parking charge notice was correctly issued. The vehicle used the car park and did not pay for parking. Therefore, the vehicle was in breach of the terms and conditions of the car park. Due to this, the parking charge notice was correctly issued.

My response:

Signage clearly states that the pay stations are located within the main entrance of The Premier Inn. This can be seen in our signage document which has been attached to the case

THIS INFORMATION IS ONLY IN THE SEPARATE, LINED-OFF SECTION FOR RESIDENTS. I looked at the non-residents section, which only says ‘Pay on departure’. The signs are clearly divided into Residents and Non-residents sections. The Non-residents information implies a payment machine at the exit barrier
In response to LPS’s OWN PHOTO submitted, the payment machines are black and in a dark, shady area. I was unable to locate them.

The terms and conditions for parking, including the parking charges applicable are clearly stated on all of the signage located throughout the car park

There is no mention of the £100 Penalty Charge

As no payment for parking was made, the driver of the vehicle was in breach of the terms and conditions

I attempted to honour the terms displayed – Pay for parking on departure but was unable to do so and attempted to do so at the first opportunity by contacting LPS the next morning

When parking on private land the motorist freely enters into an agreement to abide by the conditions for parking in return for permission to park

I entered into an agreement to pay £2 for parking on departure, which I was unable to do

the parking charge notice was correctly issued.
For all the reasons I have stated above, this parking charge notice was not correctly issued. I did not breach any terms of contract that I was made aware of by the signage and have shown and proven (with evidence) my intention to comply with those terms, since I was unable to comply with the requirement to pay on departure

MistyZ

benbecula wrote: »

My response:

Signage clearly states that the pay stations are located within the main entrance of The Premier Inn. This can be seen in our signage document which has been attached to the case

THIS INFORMATION IS ONLY IN THE SEPARATE, LINED-OFF SECTION FOR RESIDENTS. I looked at the non-residents section, which only says ‘Pay on departure’. The signs are clearly divided into Residents and Non-residents sections. The Non-residents information implies a payment machine at the exit barrier
In response to LPS’s OWN PHOTO submitted, the payment machines are black and in a dark, shady area. I was unable to locate them.

The terms and conditions for parking, including the parking charges applicable are clearly stated on all of the signage located throughout the car park

There is no mention of the £100 Penalty Charge

As no payment for parking was made, the driver of the vehicle was in breach of the terms and conditions

I attempted to honour the terms displayed – Pay for parking on departure but was unable to do so and attempted to do so at the first opportunity by contacting LPS the next morning

When parking on private land the motorist freely enters into an agreement to abide by the conditions for parking in return for permission to park

I entered into an agreement to pay £2 for parking on departure, which I was unable to do

the parking charge notice was correctly issued.
For all the reasons I have stated above, this parking charge notice was not correctly issued. I did not breach any terms of contract that I was made aware of by the signage and have shown and proven (with evidence) my intention to comply with those terms, since I was unable to comply with the requirement to pay on departure

You have to do this and I really hope you win. However I think you should get back to Premier Inn as well, my sense is that the case you make here is not the strongest and I'm not sure how you could improve on it. Others will advise I'm sure. But Premier Inn really need to listen to you, make sure they do. They can cancel this.

I suggest putting the quotes from LPS within quotation marks and, if character count allows, prefacing them with 'LPS claim:'

Coupon-mad

My response:

Signage clearly states that

Bad start. NEVER quote their words as you are wasting characters AND it sounds like your response is that the 'signs clearly state...'. POPLA will read that and think you are not disputing the signs, if they skim-read.

Same with this, again you are quoting words that you DO NOT want to say:

The terms and conditions for parking, including the parking charges applicable are clearly stated on all of the signage located throughout the car park

That's the opposite of what you want to be saying, so no quoting the PPC.

And not this:

I was unable to locate them.

NO. That sounds like the fault is yours and that you looked for machines. Surely what really happened was that it was pitch black and no signs or machines were lit, so could not be seen by drivers at all, and their evidence only shows daylight pics.

It is not that you could not locate the machines. It's that you had no idea due to the darkness (quote the BPA CoP about enforcement after the hours of darkness).

MistyZ

'I was unable to locate them'..... that was my suggestion & I agree with C-m that it is much better to really bang home the point that they couldn't be seen at all.

benbecula

Thanks again. I will rewrite it and contact Premier Inn again.

The_Deep

Nine times out of ten these tickets are scams so consider complaining to your MP.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

waamo

Rebutting their statement means going through and trashing it completely. Instead of "I was unable to locate them" go with "the signs could not be located due to being unlit at night. This is contrary to the BPA code of practice."

Hammer it home.

benbecula

My MP has written a great letter to the CEO of LPS, so I hope that will help. I haven't had a chance to call Premier Inn yet. Here is my latest attempt:

Rebuttal of evidence from LPS

ON ALL SIGNS, THE LOCATION OF THE MACHINES IS ONLY IN THE SEPARATE, LINED-OFF SECTION FOR RESIDENTS AND IN A MUCH SMALLER FONT. As a non-resident, I looked at the non-residents section, which only says ‘Pay on departure’. The signs are clearly divided into Residents and Non-residents sections. The Non-residents information implies a payment machine at the exit barrier. This is an attempt to mislead drivers and contravenes the BPA Code of Practice, section 9.5.

In response to LPS’s OWN DAYLIGHT PHOTO submitted, the payment machines are black and in a dark, shady area and CANNOT BE SEEN, again a possible attempt to force drivers into incurring charges (BPA CoP 9.5). I would like to note that whenever I have seen similar machines, they have always been brightly lit, painted bright yellow and prominently signposted (e.g. at Heathrow Airport).

There is no mention of the £100 Penalty Charge, in breach of the BPA code of practice section 19.3

I attempted to honour the terms displayed – to pay for parking on departure, but was unable to do so. I attempted to do so at the first opportunity by contacting LPS the next morning, but my attempts to pay were ignored.

I entered into an agreement to pay £2 for parking on departure, which I was unable to do

For all the reasons I have stated above, this parking charge notice was not correctly issued. I did not breach any terms of contract that I was made aware of by the signage and have shown and proven (with evidence) my intention to comply with those terms, since I was unable to comply with the requirement to pay on departure and so, tried to pay the following morning.