Lost POPLA appeal - What to do next

rookie91

I've lost my POPLA appeal and was wondering what the next steps are.

This is the assessors decision:

"Decision

Unsuccessful

Assessor Name

Stuart Lumsden

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to failing to purchase a valid pay and display ticket.

Assessor summary of your case

The appellant’s case is that the signage upon entry is misleading. He states the road leads to two separate car parks which is confusing and could be construed as two separate sites. He states the terms and conditions are misleading and not readable from a moving vehicle, they are also small. The appellant adds he would like to see that the operator has authority to issue PCN’s on the land in question. The appellant has provided evidence to support the appeal.

Assessor supporting rational for decision

The appellant has not identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the registered keeper.

When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. The operator has provided photographic evidence of the signage in place in the car park, which states: “Parking Tariffs Apply. Tariffs. Up to 24 hours £5.00…Failure to comply with the terms & conditions will result in a Parking Charge of: £100”. The operator has provided photographic evidence of the appellant’s vehicle, entering the car park at 10:44, and exiting at 11:32, totalling a stay of 47 minutes. The operator has provided evidence to demonstrate that the appellant did not pay to park. The appellant explains that the signage upon entry is misleading. He states the road leads to two separate car parks which is confusing and could be construed as two separate sites. He states the terms and conditions are misleading and not readable from a moving vehicle, they are also small. I acknowledge the appellants grounds of appeal and appreciate that the driver of the vehicle found the signage confusing.

As the appellant has not confirmed he was the driver I must confirm that the operator has complied with Schedule 4 of POFA (2012). I have reviewed PCN and it was issued within 3 days of the breach, well within the 14 days set out in POFA, it also stipulates that if after 29 days the driver has not been identified it has the right to recover the charges form the registered keeper.

I have reviewed the images of signage provided by the operator, some of which are date stamped January 2019. These stipulate the terms of parking and the entrance signage stipulates it is a pay and display site. Whilst I do not expect a motorist to review the signage whilst driving, it is there to alert motorists that parking terms exist. It is then up to the driver of the vehicle to review the signage once parked and comply with the terms and conditions. I do not find the signage too small to read and it is clear that it’s evenly spread. I acknowledge the appellants evidence but none of it is date stamped, as such I am unable to verify when it was taken.

The appellant adds he would like to see that the operator has authority to issue PCN’s on the land in question. The operator has provided a heavily redacted landowner agreement, I have reviewed this and it stipulates the land in question, the name of both parties, the commencement date and is signed by both parties. I note there is no end date, this is not uncommon as contracts roll over until the landowner cancels the agreement. As such I find the redacted agreement suitable to demonstrate that the operator has authority to issue PCN’s on the land in question. POPLA’s remit is to assess the validity of the PCN, as the driver remained on site without making payment, I must conclude that the PCN was issued accordingly.

I have reviewed the operators evidence pack and it has provided images of the appellants vehicle entering and exiting the site. It has provided images of the signage on site which is clear, legible and evenly spread, this sets out the terms of parking and the PCN amount if the terms are not met. I acknowledge the appellant’s comments, however when looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. POPLA cannot allow an appeal if a contract was formed and the motorist did not keep to the parking conditions. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park.

Upon consideration of the evidence, the appellant did not comply with the terms and conditions by failing to purchase a valid pay and display ticket. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal. I note the appellant has raised further grounds of appeal in the motorist comments, as these were raised after the initial appeal, I cannot take them into account."

I raised "further grounds of appeal" after the evidence was provided by ParkingEye as i wasn't aware that I had grounds of appeal on that basis before. Any help would be much appreciated please.

Thank you

D_P_Dance

The answer to your question is contained in the Stickies/newbies at the top of the index page, please read them.  

Umkomaas

As this seems to be a ParkingEye case, under normal (non-crisis) circumstances failure to pay them after an unsuccessful POPLA appeal will see them issue a Letter of Claim followed by an actual court claim. There are some instances where, as an alternative, they pass to debt collectors - we believe this to be the case when the landowner who has contracted with them to operate on their car park has refused consent for them to pursue cases through the courts. 

You could try, even at this late stage to get the landowner to cancel the charge, but as PE will have spent money on winning at POPLA, they do dig in their heels. 

Beyond that, and given the far from normal situation in the country, I'd see what move PE will next make. Come back on this thread then. 

Le_Kirk

In your OP you did not say whether you had inadvertently paid for the wrong car park or not.  Was this the case, as it will make for a stronger argument if/when it goes to small claims.

D_P_Dance

ParkingEye signs leave much too be desired, read this

https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading 

If this gets to court they could well lose on this point.

Nine times out of ten these tickets are scams, so consider complaining to your MP, 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, when life gets back to normal, it will become impossible for those scammers who are left to continue their vile trade, 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.

Redx

One of two options for any so called next steps

Pay up , in full

Or

Fight in court within 6 years

It's not as if there is a massive staircase or pathway

You have the right to air your case before a judge and let them decide

For a parking eye case , the 2 crucial elements are landowner authority and signage

rookie91

Le_Kirk said:

In your OP you did not say whether you had inadvertently paid for the wrong car park or not.  Was this the case, as it will make for a stronger argument if/when it goes to small claims.

No the driver didn't pay at all. They thought it was part of the carpark for the cinema because the signage wasn't clear/present.

rookie91

Umkomaas said:

As this seems to be a ParkingEye case, under normal (non-crisis) circumstances failure to pay them after an unsuccessful POPLA appeal will see them issue a Letter of Claim followed by an actual court claim. There are some instances where, as an alternative, they pass to debt collectors - we believe this to be the case when the landowner who has contracted with them to operate on their car park has refused consent for them to pursue cases through the courts. 

You could try, even at this late stage to get the landowner to cancel the charge, but as PE will have spent money on winning at POPLA, they do dig in their heels. 

Beyond that, and given the far from normal situation in the country, I'd see what move PE will next make. Come back on this thread then. 

I think that is a strong point. I also found out when they presented the evidence that they didn't have any planning permission for any of the signage they claimed was present. I was going to use that as a part of a defence.

Umkomaas

I also found out when they presented the evidence that they didn't have any planning permission for any of the signage they claimed was present. I was going to use that as a part of a defence.

Waste of time. Signage needs advertising consent, not planning permission. The civil court won't consider it as it's a criminal issue - the enforcement authority is the local council, they would be responsible for pursuing that. It will have no impact on your parking charge. 

If you have time on your hands, your head is immune from the pain of crashing it against brick and you have a penchant for chasing the lost cause, then contact your local council - if you can get hold of anyone not locked down - and see if they show the slightest bit of interest.

rookie91

In the County Court

Claim Number: ****

Between

ParkingEye Ltd

and

****

 

Background - the driver believed they were an authorised patron of the onsite businesses.

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.

2. The allegation appears to be that the 'vehicle was not authorised to use the car park' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of 'No Authorisation' or not being a patron of the facility.

3. The Defendant has already proved that patronage, and it is the Claimant's own failure, caused by their deliberately obscure terms that catches out far too many victims at this location, that has given rise to a PCN that was not properly issued from the outset.

Unclear terms - unconscionable penalty relying upon a hidden keypad

4. According to the sparse signs in this car park, it transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, visitors to Chiquito were expected to know to input their Vehicle Registration Number (VRN) at the Chiquito Reception, although you must also be expected to know that the adjoining businesses are not part of the business park that Chiquito operates from.

5. Upon receiving the claim, the only route offered was a supposed 'appeal' to ParkingEye themselves, but the Defendant knew that no offence or mischief had occurred and honestly believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

5.1. This fact was later confirmed in all readings of the Private Parking Code of Practice Bill, from February 2018 to date, where MPs universally condemned the entire industry as operating 'an outrageous scam' typically relying upon hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association ('BPA') Trade Body and indeed, ParkingEye themselves were specifically named and shamed more than once in Parliament and the Bill was introduced purely because the industry is out of control, self regulation has failed, and in many cases any 'appeal' is futile.

No legitimate interest - the penalty rule remains engaged

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.

7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When - all too often at this location - ParkingEye unfairly harvest the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

7.1. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.

7.2. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.

8. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to input their VRN at the venue reception, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

9. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

9.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.

Lack of good faith, fairness or transparency and misleading business practices

10. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the keypad(s) and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way ParkingEye make any money.

11. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that ParkingEye withheld the option of landowner cancellation all along.

11.1. By failing to adequately alert patrons to the keypad, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail.

Unclear signage

12. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

12.1. The Claimant's signage at the entrance is obscured by foliage and is confusing. The sign situated at the entrance caused great confusion. In fact, a ruling by Deputy District Judge Mackley from a similar case (E7FC74JV) which was dismissed for the same carpark on 03/07/19 would support my case. DDJ Mackley says while delivering his judgement ‘It is clear that this is a car park which is potentially available for dual use, for people either going to the cinema/visiting the dock area for which they would have to pay or for visiting Chiquito’s, where they do not have to pay. It seems to me taking all those together, that I find on the balance of probabilities, that ParkingEye ought to have taken more steps to make it absolutely clear that there was a change to the monitoring of the car park and that charges were now going to be in place’. He further states ‘I am satisfied that a person entering that car park may have missed the entry sign or been misled by the other sign. Although ParkingEye say the latter it is not theirs and I accept it is not, it is effectively on their parking area and may lead to some confusion’.

12.2. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

12.3.The Consumer Rights Act 2015 Schedule 2, paragraphs 6, 10, 14 and 18 have been breached by the unclear system and lack of signs in the route to parking and the area the defendant parked.

13. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.

Any thoughts on my defence would be appreciated.

Thank you

Coupon-mad

What's the date of your claim form and have you done the AOS online already, what date did you do that?

Please now make a real difference - A TASK FOR SEPTEMBER.

The Government is (this month only) consulting about a new statutory code of practice (CoP) and framework to rein in the rogue parking firms.  Read and comment on the draft CoP proposal and the enforcement framework consultation, and get everyone you know to do the same.

You will need to register to comment on the CoP and enter an occupation even if you are retired or a homemaker, but otherwise it is easy to navigate, and comment upon each section/subsection individually. You can save comments to edit later and or submit comments once you are happy with them.

https://standardsdevelopment.bsigroup.com/projects/2020-00193#/section

You do not need to register to comment on the enforcement framework which can be found here. It has a link on page 5 to make comments.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/913272/Code_Enforcement_Framework_consultation.pdf

At the very least, we say the parking charge level should be £50/£25 or higher level £70/£35, as per Council PCNs in E&W.  

And we say the added fake 'debt recovery' costs are just double counting the cost of letters, and MUST GO because that is unfair and illegal.

Please be heard.  You can bet the hundreds of PPCs will be commenting.

No apologies for repeating this vital 'call for action' to consumers, on every thread this month!