Euro Car Parks POPLA appeal: Evidence comments

The_Leopard

Hello

I received a NTK from Euro Car Parks and have got to the point of providing comments to their evidence in the POPLA process. 
I would welcome some insight as I'm sure I've missed some obvious things. The response to the signage is misleading. There are only two signs outlining terms in the whole car park bar the one at the entrance that is mentioned in the appeal. The other signs (shown on the map by an 'x') are simply signs saying that blue badge holders also have to pay. They don't rebut the statements around the confusing nature of the signage.

The contract with M & S that they have provided doesn't actually say who has signed it and their authority to do so... Just a signature of someone.  Any comments/corrections/additions/errors (definitely additions/erros!) would be incredibly welcome.
Thanks

POPLA appeal attached

The_Leopard

Here's the start I've made on the operator comments I would welcome any thoughts if possible please. I don't know where to start with the contract as I'm not sure it is a contract - it's just a signature and nothing that states who the agreement is with at Mark and Spencers (if that matters at all). I have added paragraph numbers below. Thanks in advance. 

1. Notice to Keeper (NTK) compliance with POFA
i) I have clearly outlined in the appeal where the NTK does not comply with POFA but stating the differences between the wording. Euro Car Parks have not addressed this in their rebuttal. They have not provided confirmation from the BPA and the IPC that the NTK is compliant. They also state that Gladstones Solicitors have checked the NTK but again provide no evidence of this. I have provided clear evidence of where the NTK does not comply with POFA. ECP have failed to respond to these direct points from the appeal and have instead provided two generic statements that provide no evidence of POFA compliance and their NTK template (figure 1) that contains some highlighted boxes (that only highlights further the areas that are not compliant with POFA). They do not explain how their NTK is POFA compliant against the points my appeal highlighted. 

ii) To reiterate, and I will use the BPA’s own code of practice to reinforce this point. Section 21.2 states, “As long as the strict conditions of Schedule 4 are met, you may claim payment from the keeper”. POFA is clear in its strict condition that the keeper must be invited to tell the operator who the driver was. EPC state that the keeper “should” provide this information which is misleading and not following the strict conditions of POFA. The BPA COP reinforces this within point 21.11 :
The Notice to Keeper serves three purposes: 
• it invites the keeper to pay the unpaid parking charge 
• if the keeper was not the driver it invites the keeper 
to tell you who the driver was, and
• It starts the 28-day time period after which the keeper may become liable to pay the unpaid parking charge. 

iii) EPC’s NTK does not comply with POFA and therefore the Keeper cannot be held liable for this invoice.

2. Misleading signage plan/lack of signage provided by ECP
i) ECP’s signage plan provided in their operator evidence is misleading and clearly located in areas whereby it is impossible for a potential customer read the signs without parking and leaving their vehicle. As ECP have not outlined this in their response I will do so after visiting the car park on receipt of their operator evidence.

ii) There is clearly limited signage relevant to this case within the car park. By not explaining what each of the signs state ECP may be suggesting that all of the signs are the same as in figure 2. This is not the case. 

a) Sign MSPD3 is impossible to see for a driver entering the car park. It would only be possible to see on foot. The image that ECP have provided of this sign has been taken from the pedestrian pathway, on foot, and in a standing, uninterrupted position. Once in the car park, it is behind the M & S Food Hall sign and obscured.
b) Sign GDPR, in relation to the use of data is positioned outside of the car park and would only be seen on foot if an individual was walking into the car park or if they walked past it on departure. There is only one sign.

c) Sign MSPD3 (right had side of screen shot) is located in a corner of the car park that is inaccessible to the public in the deliveries area. Again, a customer has little to no chance of reading this.
d) The signs marked ‘x’ and ‘DB1’ are outlining the terms of conditions for disabled drivers specifically and relate to blue badge restrictions and not the broader terms and conditions of the car park. Please do not be misled that there is plentiful, repeated signage in this car park
e) Sign MSPD1 is repeated twice in the entire car park. It is these two signs that I will discuss in more detail and their confusing nature. However, I would like to draw your attention to the signage plan provided by ECP. Only two observable signs outlining their supposed terms and conditions for parking in a car park of this size is clearly not aligned to the BPA COP 19.1: “In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are”. I put it to the adjudicator that EPC’s signs are a) not positioned to be seen from the start of parking and b) presented in such a way that it makes it easy for a customer to find out what the terms and conditions are

3. Ambiguous terms and conditions/unclear signage
i) ECP have not taken the time to respond to the nature of their wording and its ambiguous nature as outlined in my appeal. They have simply highlighted the lack of signage and emphasis placed upon one of their primary terms and conditions in the parking is limited to 1.5 hours. The headline in red in a large font, “ 1 hour free parking for customers via refund” is ambiguous. Hence the driver believing that this was in addition to the 1.5 hour limit which EPC have highlighted in figure 2 which is written in a bullet point style fashion and in a smaller font. There is so much text on the sign that it is very challenging to be entirely clear what the terms and conditions actually are. The driver met the conditions in the way that they understood them. They paid for 1.5 hours parking and they shopped in M & S believing that they had paid for the time to do so.

ii) ECP are also ambiguous in their rebuttal points. They state that “all drivers are required to adhere to the maximum stay on site” yet their signage relates to a maximum period of parking. A ticket was purchased but the driver would not have been aware that they were ‘on the clock’ from the moment they entered the car park. ECP have provided no evidence of the duration to which the vehicle was parked and have just provided two images of a vehicle on an identifiable stretch of road.

KeithP

When responding to the operator's comments on PoPLA you have a maximum of 2000 characters, not words, characters, to play with.

Your draft is currently 5726 characters.

Redx

read any popla appeal rebuttals over the last 12 months or so , plagiarise from those , but keep to that 2000 CHARACTERS limit , so keep it short , concise , bullet points style , no fulll stops etc, more like an old telegram , not war and peace

The_Leopard

Thanks Keith, appreciate this needs significant trimming down, just a first draft - not sure if I'm on the right track or not in terms of the points raised, any thoughts on the headlines?

nosferatu1001

Have you done the research as instructed ?

MistyZ

The_Leopard said:

I would welcome some insight as I'm sure I've missed some obvious things. The response to the signage is misleading. There are only two signs outlining terms in the whole car park bar the one at the entrance that is mentioned in the appeal. The other signs (shown on the map by an 'x') are simply signs saying that blue badge holders also have to pay. 

Major precis job required!  

I haven't read your appeal.  But take a straightforward approach to the rebuttal.  For example, if you are confident that your signage section was clear, do not be fazed by ECP's so-called evidence.  They will have chucked any old rubbish your way - it will be quantity, not quality.  You do not have to repeat whole sections of your appeal, only to rebut ECP's evidence with reference to it.  

If the comment quoted above was elaborated upon in your appeal, there is no need to go into the long grass again.  What you say in that quote seems very clear, concise and adequate.  

I like the character limit - it forces appellants to be really clear.  If I was a POPLA assessor, (I'd rather starve), I'd respond favourably to clear points made succinctly.

The_Leopard

Thanks for the replies all. Hadn’t seen RedX’s before replying to KeithP so I will be scouring the forum later tonight for other appeal rebuttals if that’s what you meant by doing the research I’ve been instructed to Nosferatu? Thanks Misty, point taken, I will make the rebuttal concise and to the point.

Umkomaas

Having scanned your appeal and the ECP NtK, I'm struggling to find PoFA non-compliance that nothing more than a Rizla paper separates. It will be far too subtle for PoFA to find against IMHO. Unless another regular spots something fundamental that I've missed. 

Hopefully the 'kitchen sink' weight of your POPLA appeal, plus some pointed stuff particularly around signage you can put together in your rebuttal, will persuade POPLA.  Even if you lose, no requirement to pay ECP anything, only a Judge can instruct you to do that. 

Coupon-mad

ECP comply with the POFA usually, so forget that.  POPLA comments stage is already covered in the NEWBIES thread and it clearly says you only have 2000 chaavters (NOT WORDS) and you can't use it to re-state your entire appeal or add more. 

Just do bullet points about the signage and if you lose, ignore them and complain to M&S which you neded to do FIRST, pre-POPLA, and it would have likely been cancelled had you persisted and gone to M&S Head Office over it, as the NEWBIES thread tells people is always 'PLAN A'.  (Sorry if you have already exhausted that route but it really should be done well before trying POPLA).

D_P_Dance

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.