ECP Purchased ticket Via Card POPLA Help

notTheDriver1

Hi All,

First off I have read the newbie posts and done a lot of research on the boards, albeit quit a lot to take in all at once. Sadly I did do this after my initial appeal, which I didn't record so can't say whether I admitted being the driver or not (I know, this is massive but I was stressed and only came here after rejection).

Situation:
My partner and I visited Llandudno and parked in the Euro Car Parks operated car park at Holy Trinity Church. We paid for parking using card via the machine, the payment was taken successfully with a success message asking if a receipt was needed (declined as we'd paid by card and didn't want to waste paper). 2 weeks later the payment war refunded to the card and a parking notice appeared through the door claiming we hadn't paid for parking.

In my haste I appealed the ticket sending my redacted card statement explaining that the fee had been paid on the card marked at the times of the alleged notice. The appeal was duly rejected on the grounds that no tickets were purchased on that day for that vehicle. However no evidence was given bar a picture of the sign and no proof of what charge was made to the card. I have been issued a PCN for £100 with a reduced fee of £60 if I pay now rather than appeal.

I'm currently writing my POPLA appeal however I was wondering if my appeal points would be correct.

1) Evidence of purchase was given, but no evidence of what charges were made to the card by ECP.
2) No evidence provided of purchases made on that machine during that time.
3) Payment Machine not fit for purpose as it is able to enter a state where the user is charged for what seems like a valid ticket, only to later be rejected or modified.
4) Payment machine not fit for purpose on the grounds it has an internet connection to make a card payment, but not to confirm VRN is valid.
5) No Evidence of Landowner Authority - the operator is put to strict
proof of full compliance with the BPA Code of Practice

Are there any I need to add (E.G. Signeage even though I'm sure it would be adequate). Is the case of valid card purchase strong enough or will it get rejected and cost me £100?

Fruitcake

Always include the long inadequate signage point from post 3 of the NEWBIES plus every other point that is relevant. If you can't rember if the driver was identified, assume it wasn't and assume the NTK was non PoFA compliant.
Make them prove otherwise.

Ask the PPC for a copy of the NTK.

In addition, send and SAR to the PPC as per the NEWBIES and include a copy of the vehicle V5 as proof of ID. If you are lucky this will be back with a copy of the NTK before the PoPLA deadline.
PoPLA codes last 32 days.

Post your draft appeal here for checking before you submit it.

notTheDriver1

Thanks Fruitcake. I'll post my initial POPLA draft up now, need to send soon, takes up so much time.

notTheDriver1

I am writing to you to lodge a formal appeal against a parking charge notice issued by Euro Car Parks and sent to myself as registered keeper of the vehicle in question. Appeal Code XXXXXX

I contend that I am not liable for this parking charge on the basis of the below points:

A valid ticket was purchased on the day in question at the correct time for the correct ticket. Evidence given via card receipt.
No evidence has been provided from Euro Car Parks for tickets purchased from that machine on that day
The payment machine is misleading, prone to error and not fit for purpose
No evidence given that the ANPR system is maintained and reliable
The Operator is not the landowner, and has no standing or authority to issue charges.
The Operator is not the landowner, and has no standing or authority to issue charges.

1. A valid ticket was purchased on the day in question at the correct time for the correct ticket. Evidence given via card receipt.
As can be seen in evidence 1, payment was made at 13:46 on October 10th 2019 on card ending CARD_NUMBER for the sum of £2.50, the charge for a stay of 4 hours as per evidence 2. EuroCarParks LLandudno is clearly visible in the payment charge with the postcode for the car park clearly in the payment detail.

The ticket machine within the car park was used to make this purchase, after entering the correct VRN for the vehicle being paid for. The initial payment attempt failed, but upon retrying the purchase was a success and was instantly held against the card. A message confirming the successful purchase was shown and receipt was offered, but not taken in order to save paper. This left the card holder confident that any contractual obligations had been fulfilled and left EuroCarParks fully embursed for any parking charges.

As the full basis for this case is that Euro Car Parks claim this ticket wasn’t purchased. I would request Euro Car Parks provide full detailed evidence of what they charged card ending CARD_NUMBER for on this day. I request an unredacted list of all attempted purchases made against card ending CARD_NUMBER between 13:35 and 13:55 on the 20/10/2019 be sent to both POPLA and Myself.

← INSERT CARD STATEMENT IMAGE -->
2. No evidence has been provided from Euro Car Parks for tickets purchased from that machine on that day
In their Rejection letter Euro Car Parks claimed no ticket was purchased, however they provided no evidence of tickets purchased on the day or time in question. This conceals any actual valid ticket purchases at that time or closely matching VRNs, this also conceals the purchase made against the card given in evidence 1.

I would request a list of all tickets purchased from Euro Car Parks Holy Trinity Church - Llandudno LL30 2PY on Oct 20th 2019 between 13:40 and 14:00 this must include, but not be limited to, the ticket purchased at 13:46 charged to card ending CARD_NUMBER be sent to both POPLA and Myself.


3. The payment machine is misleading, prone to error and not fit for purpose

The user followed the payment machines instructions as described, entering what was believed to be the valid VRN for the vehicle, this machine failed to read the card on the initial try, however the second try read the payment card successfully and a charge was instantly placed on the card for the correct amount. The user is now led to believe this transaction is fully valid.

If Euro Car Parks claim this ticket purchase was not valid then this puts into serious question the viability of these payment machines and the potential for them to malfunction or mislead users. I would challenge that the payment flow for card purchases is potentially misleading and prone to error thus not suitable to be part of a legally binding contract.

I will contest that the card payment system may have a malfunction that caused a falsely invalid transaction that was shown as a valid purchase to the user. As such the user was incorrectly mislead and cannot be held responsible.

The owner of said machines should provide suitable hardware for inputting details to purchase tickets. If the hardware does not respond correctly a user can’t be held accountable. A user should have reasonable room for small mistakes and be informed if mistakes are made. If a user is told a transaction is successful it should be a success.

As the machine is connected to the internet to take payment charges then it must also be assumed it has the potential to link to the ANPR system to be able to validate purchases. Thus the machine owners have not taken suitable steps to prevent misleading of customers.

I would request Euro Car Park supply all error logs of machines in Holy Trinity Church Llandudno on October 20th 2019 be sent to both POPLA and Myself.

I would request Euro Car Park supply all invalid ticket purchases at Holy Trinity Church Llandudno on October 20th 2019 be sent to both POPLA and Myself, in order to prove the machine hardware was not faulty.

I would also request Euro Car Parks provide diagrams showing the full user display workflow, including error and failed payment states, of the payment machines used at Holy Trinity Church Llandudno be sent to both POPLA and Myself. This is in order to prove their suitability for use and prove they are not misleading.


4. No evidence given that the ANPR system is maintained and reliable

Euro Car Parks have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times.
It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Euro Car Parks has not provided any evidence to show that their system is reliable, accurate or maintained.


5. The Operator is not the landowner, and has no standing or authority to issue charges.
This Operator is not the owner, nor has proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Euro Car Parks must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Euro Car Parks to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Initial Parking and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Euro Car Parks.
Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name. In addition, Section 7.3 states:
“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 put Euro Car Parks to strict proof of compliance with all of the above requirements and specifically relating to drop off/pick up activity, not just a general redacted contract about the pay and display/permit area which was not used. In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.


6. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.

In this case, no other party apart from an evidenced driver 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 keeper without a valid NTK.

As the keeper 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator 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 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 keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against 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.''


This concludes my appeal.

notTheDriver1

Lost some formatting on the draft, but the initial bullets will be numbered.

The_Deep

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP after the election, as it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

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.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

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

Le_Kirk

The payment machine is misleading, prone to error and not fit for purpose
No evidence given that the ANPR system is maintained and reliable
The Operator is not the landowner, and has no standing or authority to issue charges.
The Operator is not the landowner, and has no standing or authority to issue charges.

So good they wrote it twice!

notTheDriver1

Cheers, that was meant to be the title for the not proven driver identity section! 🙈