Incorrect Registration

Le_Kirk

green_oli said:

Le_Kirk said:

Notwithstanding the facts that IAS is a kangaroo court, you are likely to see the appeal rejected and you might have given away the driver, how is any parking company supposed to believe that AN Other was driving your vehicle but still managed to input the VRM of a car previously owned by the RK (defendant) rather than turn around and look at the registration plate as the ticket was being purchased?

Auto-pilot kicked in for the payee plus it was raining and rushing 

How do you know this?  Were you there and a passenger in the car?  The point is why would somebody else, who was driving your car, know your old car and its VRM and then use it rather than the one actually attached to the vehicle.  You need a better, more believable story!  Not saying you are telling porkies but look at it from the POV of an assessor or, worse, a judge!

green_oli

Should I perhaps not include that part: "The incorrect registration (XXX reg) keyed in was of a former vehicle sold during the pandemic (with the first letter of the registration being the same). The vehicle that was parked in the SiP car park was only recently purchased few months ago and hardly driven due to the lockdown". 
And perhaps focus on parking company's failure to adhere to the IPC code of practice... signage, ANPR etc?
I was hoping that they would be too short-staffed to respond to my appeal resulting in a cancellation... 

Le_Kirk

You still don't explain why someone else would know about your old car and its VRM and why they would use it. 

Umkomaas

@green_oli, is the PPCs NtK PoFA compliant?  If it is, all the wording gymnastics as to who the driver might or might not have been, or what he/she might have done, are irrelevant - the keeper can be held liable, regardless of who was the driver. 

green_oli

@Umkomaas I've compared NtK to POFA2012 and it looks compliant to me

Umkomaas

green_oli said:

@Umkomaas I've compared NtK to POFA2012 and it looks compliant to me

In which case, no mileage in hiding behind PoFA. But let's be certain, please scan a redacted copy of the NtK (both side). Please leave all dats showing. 

Umkomaas

green_oli said:

@Umkomaas hope this helps

Dates showing please?

Umkomaas

I can't see any PoFA failures with the NtK, so there's no cover for the keeper. Once that's clear, it becomes easier defending as the driver, saves trying to somersault over words and phrasing. 

See if another regular will cast their eyes over the NtK to confirm my analysis. 

green_oli

IAS Appeal first draft

Dear IAS

I, the registered keeper of this vehicle, received a letter dated 29/10/2020 acting as a notice to the registered keeper. My appeal to the Operator – SIP Car Parking Limited – was submitted and acknowledged by the Operator on xx/xx/2020 and rejected via an email dated xx/xx/2020. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

a)    A ticket was purchased with a major keying error

b)    Unclear signage

c)    Inadequate ANPR technology

d)    Failure to comply with the data protection

e)    No planning permission or advertising consent from the Council

a) A ticket was purchased with a major keying error

A valid ticket was purchased and presented to SIP Parking Ltd in the first appeal. It was also explained that an incorrect registration was keyed in error. The ticket shows a payment of £xx for 12 hours parking even though the charge was £xx. Sadly, they have chosen to ignore the evidence provided. The parking operator also failed to cancel or offer the reduced charge which is required by section 17 of the British Parking Association Code of Practice. Why has this International Parking Community (IPC) member not followed suit and be more sympathetic over trivial typing errors?

(tbc)

green_oli

b) Unclear signage

SIP Car Parking Limited has failed to adhere to the International Parking Community Code of Practice relating to signage. The signage does not comply with the IPC Code of Practice as set out in Schedule 1 as per Requirements for the Conduct of Private Parking Management 8 Signs:

8.1 The Operator must have clear signage located on the Private Land to confirm the Terms and Conditions in place.

8.2 Signs must conform to the requirements as set out in Schedule 1.

The signage does not meet minimum size requirements and was not prominent enough to form any contract with a driver. There is insufficient notice of the sum of the parking charge itself.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

“(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £ sum, which is illegible in most photographs - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was neither contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'Parking Eye Ltd v Beavis' case. In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court was keen to point out the decision related to that car park and those facts only.

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. 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. Here, the signs are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print. Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 of 2nd June 2016, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

‘‘The signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

(Link)

The letters seem to be no larger than .16 font size going by this guide:

(Link)

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sale advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

''When designing an outdoor sign for your business, keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

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 above 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. 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. This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

http://imgur.com/a/AkMCN

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location are provided to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.