Premier Park and Leaving Site

wweessttoo

The ticket was addressed to my father as the registered keeper, but another was driving. I am appealing on his behalf as he struggle to use a computer. He was identified as the registered keeper of the vehicle, no admission was made as to who was driving but a previous reply indicated I had already given the game away on who was driving.

Umkomaas

no admission was made as to who was driving but a previous reply indicated I had already given the game away on who was driving.

The PPC has probably missed this.

So, if the PPC is (still) addressing everything to your father, then you must do everything in his name. Sorry, if this is the case, the problem is that of your father, you cannot take on liability unless he has formally transferred it.

If it's still in your father's name, it doesn't stop you doing all the paperwork for him, but it must be done in his name and under his signature.

wweessttoo

Thanks for reading. I will number the bullet points and see if any further comments come back before submitting tomorrow.

Umkomaas

wweessttoo wrote: »

Thanks for reading. I will number the bullet points and see if any further comments come back before submitting tomorrow.

........ in your father's name?

wweessttoo

Umkomaas wrote: »

........ in your father's name?

Yes signed off by my father.

Coupon-mad

The photograph provided by Premier Parking

No such company.

Drives me mad...sorry, far too often we see PP called the wrong name! Edit it away!

And after a quick late night skim-read, I saw nothing to tell POPLA near the start that he wasn't actually the driver, even though his initial appeal used the word ''I'' it was not about who was driving and the Appellant was only the rk.

Also, your first post was MUCH more clear than your POPLA appeal draft, about them showing no evidence of the driver leaving the site, I liked the word 'random' but it's not in your Dad's POPLA appeal:

The only picture on the PP site shows two random people, (certainly not the registered owner or the occupants walking away from the car across the retail park),

Need to see if PP present further Photographic evidence, but when logging in to their site there is only one photograph showing two random people from behind some distance away. Other than this just a close up of the restrictions sign, the car parked in the bay and a front on of the dash checking for a disabled badge.

wweessttoo

Updated opening paragraph regarding driver of the vehicle and bullet point 1 to put in the previous statements in the original appeal. Thanks again



Dear POPLA

POPLA Ref. xxx- Premier Parking Limited Parking Charge Notice Ref. xxx


I write to lodge my formal appeal in respect of the above-detailed Parking Charge Notice (“PCN”) issued by Premier Parking Limited (“Premier”) in respect of an alleged breach of Parking Terms and Conditions at Bridge Rd, Stockton-on-Tees TS18 3AY, 24th December 2019. I was not the driver of the vehicle on the date in question, but I can confirm that on that date, I was the vehicle’s keeper for the purpose of the corresponding definition in Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below why I am not liable for this parking charge:

1. The occupants of the vehicle have been wrongly identified
2. Premier’s Notice to Keeper failed to meet the strict requirements of POFA.
3. Premier does not have the standing or authority to pursue charges or to form contracts with drivers using this particular car park.
4. The car park signage was inadequate.
5. The car park signage failed to notify the driver that Premier intended to exercise its rights under POFA (subject to its compliance with the requirements of POFA) to pursue the vehicle’s keeper for the parking charge in the event that the driver did not pay the charge.
6. The car park signage did not properly warn motorists of the purpose of the operation of the ANPR cameras
7. The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis

1) The Occupants of the vehicle have been wrongly identified.

The only picture provided by Premier Parking, as evidence of the alleged offence, shows two random people (certainly not myself as registered keeper or any of the cars occupants) walking across the retail park (not leaving the site). Premier Parking have provided no additional photographic evidence to support their accusations. I attach the picture in question (Appendix A)

2) Premier’s Notice to Keeper failed to meet the strict requirements of POFA

In order to rely upon POFA to hold a vehicle's keeper liable for unpaid parking charges, an operator must deliver a Notice to Keeper that fully complies with all of POFA’s strict requirements. I set out below a non-exhaustive list of reasons why Premier’s Notice to Keeper failed to do so.

Contrary to the requirements of Sch.4 Para 9 (2) (a), the Notice to Keeper did not specify the period of parking to which the notice relates. It merely stated the times which the vehicle entered and exited the car park; these times do not equate to the start and end of the period of parking.
Contrary to the requirements of Sch.4 Para 9 (2) (b), the Notice to Keeper did not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.
Contrary to the requirements of Sch.4 Para 9 (2) (e), the Notice to Keeper did not 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.
Contrary to the requirements of Sch. 4 Para (2) (f), the Notice to Keeper did not 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.
Contrary to the requirements of Sch.4 Para (2) (h), the Notice to Keeper did not identify the creditor and specify how and to whom payment or notification to the creditor may be made.


Consequently, Premier has forfeited its right to use the provisions of POFA to claim unpaid parking charges from me as the vehicle’s keeper and for this reason alone, POPLA may allow my appeal.

Should Premier try to suggest that there is any other method whereby a registered keeper can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:


https:// popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2


3) Premier has no standing or authority to pursue charges or to form contracts with drivers using this particular car park

I do not believe that Premier has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its own name. In the absence of such title, Premier must have assignment of rights from the landowner to pursue charges for breach in their own right, including at Court level.

I contend that Premier merely holds a basic licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent to car park users. I therefore require Premier to provide POPLA and me with an unredacted, contemporaneous copy of the contract that it holds with the landowner. This is required so that I may be satisfied that this contract permits Premier to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in Court in its own name.

For the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).

4) Premier’s signage was inadequate

Although Premier is aware that the British Parking Association Code of Practice requires that terms on car park entrance signs must be clearly readable without a driver having to turn away from the road ahead, based on my knowledge of other Premier signs, I have good reason to believe that the signs in this particular car park were not sufficiently clear to give proper notice to the driver.

I therefore require contemporaneous photographic evidence of all of the car park signs, including details of the height at which each of the signs was positioned and the font size of the various wording upon the signs.


5) The car park signage failed notify the driver that Premier intended to exercise its rights under POFA

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;

Paragraph 68: 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.


Paragraph 69: Contract terms that may have different meanings

(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

I have good reason to believe that Premier’s signs did not include as a core term any condition advising the driver that Premier would reserve the right under POFA to hold the vehicle’s keeper liable for the parking charge should this not be paid by the driver.

In accordance with the rule of contra proferentem it is reasonable for the driver to conclude that Premier was one of the many private parking companies that choose not to use the provisions of POFA.

6) The car park signage did not properly warn motorists of the purpose of the operation of the ANPR cameras

Paragraph 21.1 of the British Parking Association Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for. Premier’s signs do not comply with these requirements.


7) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis


This situation is an 'ordinary' contract involving no breach of the legitimate interests of the landowner and can be very easily distinguished from the case of ParkingEye 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 'ParkingEye 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/standard contracts with a transaction and tariff paid at a machine:
''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 - 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 in at least two ways:

the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''
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.

Based upon the above-detailed representations, I respectfully request that my appeal is allowed.

Yours faithfully

Umkomaas

6) The car park signage did not properly warn motorists of the purpose of the operation of the ANPR cameras

Paragraph 21.1 of the British Parking Association Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for. Premier’s signs do not comply with these requirements.

If the PCN has been issued on the back of a photograph taken by a parking weasel, then issues around ANPR (Automatic Number Plate Recognition) are irrelevant and shouldn't be included in your appeal.

1505grandad

You are still stating the wrong name - it is Premier Park Ltd - as in the thread title.

(just checking - the ppc is NOT the IPC AOS member - Premier Parking Solutions Ltd?)

wweessttoo

1505 Grandad - You are right - I apologise it is Premier Park Limited and have updated incorrectly on the back of Coupon- Mad's message.

I will also delete 6 as I think it was one of their guys taking the picture.