Civil enforcement POPLA appeal (Waverley court EN2)

muslimahi

Posts: 81 Joined: 2 Feb 2013 Member No.: 59,745

Hi everyone, I'm helping a friend with another PCN received from Civil Enforcement. Appeal as registered keeper was made and unsuccessful. I'm about to do the POPLA appeal now so just wanted to run it by before sending. All the images provided by CE in response to appeal PCN Front and back https://ibb.co/PDW8frq and https://ibb.co/JdfHfXG Signage: https://ibb.co/3CNFsRN Initial appeal : https://ibb.co/5TVT39V  Images they hold of car: https://ibb.co/Ypy26SJ REsponse to appeal: https://ibb.co/vDxG4PL This is what I plan to write for POPLA. I'm not sure if I've copied things that might not be relevant here so please advise Dear POPLA Adjudicator,  I am the registered keeper of vehicle xxxxxxx and am appealing a parking charge from Civil Enforcements on the following points:  1. A compliant Notice to Keeper was never served - no Keeper Liability can apply. 2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge 3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice 4. Signage displayed in the car park is of a “forbidding” nature – so no contractual relationship entered into.  1. A compliant Notice to Keeper was never served - no Keeper Liability can apply. Although Schedule 4 of the Protection of Freedoms ACT 2012 (POFA) potentially gives a creditor the right to recover any unpaid paring charges from a vehicles keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to ‘keeper liability’ does not exist.  The operators Notice to Keeper fails to comply with Schedule 4 as below: It fails to comply with paragragh 9(2)(a) 9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (2)The notice must— (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates; (e)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; The notice to keeper is non compliant as no period of parking is mentioned and the incorrect format for (e) has been used. 2. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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.  Where a charge is aimed only at a driver then, of course, no other party 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.  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.'' 3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only). Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.  Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).  Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance: 7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken. 7.3 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 4. Signage displayed in the car park is of a “forbidding” nature – so no contractual relationship entered into. The signage displayed in the car park is of a “forbidding” nature. This means that there was never a contractual relationship entered as it is impossible to prohibit an activity and then suggest a charge for said prohibited activity. Therefore, there can never be a charge agreed for a non-existent contract. To suggest otherwise is perverse. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016]. In all three of these cases, the signage was found to be forbidding and thus only a trespass had occurred which would be a matter for the landowner. Thank you in advance.

Fruitcake

I suggest you use the long Inadequate Signage template appeal point, and expand on the forbidding nature of the signs by saying that there is no offer to park being made to non-permit holders, therefore no contract can be formed.

Also add the point that the scammers have No Standing to issue charges in their own name.

Coupon-mad

Any chance of landowner complaint first?  I can't see how this will win at POPLA and would exhaust the complaint first, as retailers (or if not, then the overall site Managing Agent or landowner) can cancel a PCN with one email, immediately, same week.

muslimahi

Hi everyone. Apologies for delay in response. I got bit busy with my personal circumstances but my friend did go ahead and appeal with popla (pasted below). CE have responded with the following. Is there any comment that would be helpful to add? I feel terrible already that I couldn't give my friend the full help earlier on. 

CE RESPONSE TO POPLA APPEAL
1. There are many clear and visible signs displayed in the car park advising drivers of the terms and conditions applicable when parking in the car park. Drivers are permitted to park in the car park in accordance with the terms and conditions displayed on the signage. These signs constitute an offer by us to enter into a contract with the drivers.
2. Our Automatic Number Plate Recognition (ANPR) cameras recorded the Appellant’s vehicle, registration number in the car park during the date and time shown on the front summary sheet of this appeal.
3. There is more than adequate signage in the car park, as can be seen from the attached site plan. Furthermore, the car park has sufficient lighting and warnings for the Appellant to have acknowledged the signs, and which the Appellant accepted by their actions.
4. We refer you to the Court of Appeal authority of Vine v Waltham Forest London Borough Council [2000] 4 All ER 169 which states: “the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning”.
5. The nature of the relationship between the Appellant and our company is contractual. The car park is private land and consequently drivers require permission before parking on the land. The Company granted permission by way of making an offer in the signs displayed in the car parks and the Appellant accepted that offer and the terms set out on the signs by their conduct in parking on the land.
6. As previously stated, there was ample signage throughout the site, such that the Appellant had an opportunity to read them, including signage at the entrance to the car park.
7. The British Parking Association advises all motorists: “Regardless of whether they park in private car parks, Council car parks or on-street, motorists should always park properly and always check any signage displayed to make sure they know and understand the rules that apply. This is especially so if they are visiting for the first time - in order to acquaint themselves with the prevailing Terms & Conditions for parking.”
8. When parking on private land a motorist freely enters into an agreement to abide by the conditions of parking, in return for permission to park. Therefore, the onus was on the Appellant to ensure that they could abide by any clearly displayed conditions. Unfair Terms in Consumer Contracts Regulations 1999 - Our Charges
9. The charge sought is a contractual term, which is within the recommended British Parking Association (BPA) guidelines and is compliant the BPA code.
10. The Supreme Court, in their judgment of the recent Parking Eye v Beavis appeal, stated that: “…the charge does not contravene the penalty rule, or the Unfair Terms in Consumer Contracts Regulations 1999.” A summary of the Supreme Court’s judgment in the case of Parking Eye v Beavis has been included in the Operator’s evidence pack, but can also be accessed using the following link: https://www.supremecourt.uk/cases/docs/uksc-2013-0280-press-summary.pdf
11. We submit that the charge does not cause a significant imbalance of the parties’ rights and obligations arising under the Contract. Furthermore, Lord Neuberger and Lord Sumption asserted the following in the above Supreme Court judgment: “Any imbalance in the parties’ rights did not arise ‘contrary to the requirements of good faith’, because Parking Eye and the owners had a legitimate interest in inducing Mr Beavis not to overstay in order to efficiently manage the car park for the benefit of the generality of users of the retail outlets.” It would therefore be erroneous to conclude that the sum claimed must be a genuine pre-estimation of loss. Additional Notes
12. The Notice was issued as the Driver failed to obtain an electronic permit for the vehicle, registration xxxxx. Electronic permits may be obtained by entering your vehicle registration on the touchscreens inside the facilities.
13. This Parking Charge Notice was issued under Schedule 4 of the Protection of Freedoms Act 2012. As xxxxx  has failed to provide us with the driver’s details within 28 days, we are holding him liable as Registered Keeper. Please find enclosed a copy of his original appeal.
14. We refer you to the attached photographic evidence of the vehicle, captured by our Automatic Number Plate Recognition (ANPR) cameras, entering the car park at 18:38 and departing at 19:07 (total duration of 29 minutes).
15. Signage in the car park clearly states ‘PERMIT HOLDERS ONLY, If you breach any of the terms you will be charged £100’ as can be seen on the image on the following page.
16. The Driver failed to register the vehicle, registration xxxxx , as can be seen from the attached report which shows the vehicles were registered on the day in question. The report also demonstrates that other drivers had complied with the terms and conditions, and that the touchscreens were in good working order on the date of violation.
17. Please note that Civil Enforcement Limited is managing the car park regulations on behalf of the Landowner. Please find attached Confirmation of Authority.
18. In their submission the Appellant has commented that it is not clear that ANPR cameras monitor the car park, however, our signs clearly do state ‘’We use manual patrons and ANPR cameras to monitor this private property and may contact DVLA to request the Registered Keeper’s details.’’
19. It is our submission that Drivers have an obligation to check for signage when parking on private land – the signs do not need to be placed directly in the position where they parked, they simply must be placed throughout the site so that drivers are given the chance to read them (BPA Code of Practice, p9.2, and see also BPA Code of Practice, 19.3).

picture of land permission: https://ibb.co/fGWBJss

muslimahi

The popla appeal sent:

1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

Although Schedule 4 of the Protection of Freedoms ACT 2012 (POFA) potentially gives a creditor the right to recover any unpaid paring charges from a vehicles keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to ‘keeper liability’ does not exist. 
The operators Notice to Keeper fails to comply with Schedule 4 as below:
It fails to comply with paragragh 9(2)(a)
9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(e)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;

The notice to keeper is non compliant as no period of parking is mentioned and the incorrect format for (e) has been used.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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. 

Where a charge is aimed only at a driver then, of course, no other party 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012. 

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.''


3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement. 

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement). 

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 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

4. Signage displayed in the car park is of a “forbidding” nature – so no contractual relationship entered into.

The signage displayed in the car park is of a “forbidding” nature. This means that there was never a contractual relationship entered as it is impossible to prohibit an activity and then suggest a charge for said prohibited activity. There is no offer to park being made to non-permit holders, therefore no contract can be formed. Therefore, there can never be a charge agreed for a non-existent contract. To suggest otherwise is perverse.

I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016]. In all three of these cases, the signage was found to be forbidding and thus only a trespass had occurred which would be a matter for the landowner.

Coupon-mad

This was the wrong approach. Never try POPLA before trying for a retailer/ landowner cancellation.

However, I see a winning point, if CEL failed to offer to settle this at £20 before proceeding to POPLA stage? 

In 12 they admit that the issue was not putting in a VRM into a keypad. That is a ‘major keying error’ and the BPA COP requires PPCs to offer £20 to settle these issues.  If CEL did not, then tell POPLA.

Go read the most recent dozen or so replies in POPLA DECISIONS and find the cases where POPLA have found in favour of people for not putting in a VRM. Copy POPLA’s reasoning back at POPLA!    Always use POPLA’s own words and quote from the same BPA COP section as POPLA did in those recent decisions. 

Your friend had JUST SIX DAYS to put comments in on the portal so urgently tell them what to put.

muslimahi

Thank you coupon mad! I’m on the case. Will have something typed up by end of today for my friend. 

muslimahi

From a quick read of the last 2 popla wins on this, seems like the appellants proved they were genuine customers which the operators ignored. do you think it would be questioned that this was not mentioned in the initial appeal here?

This is what I am asking my friend to add as comment but please let me know if it needs editing,

The operator’s response in point 12, makes it clear that there is a electronic terminal for the input of VRM thus it will need to adhere to the following: -

Keying errors are dealt with by the British Parking Association’s Code of Practice section 17. Section 17 of the BPA Code of Practice states

 “Technology is being used more and more by parking providers as an aid to car park management.  Irrespective of whether a parking facility is off-street or on-street, the increased use of technology will often require a motorist to correctly enter their vehicle registration at a pay and display machine, parking kiosk or at a validation terminal inside the location in instances where parking is offered at a reduced rate or free of charge.”

Not entering the registration at all is a major keying error. The British Parking Association states that when a major keying error has been identified, or if the motorist was a legitimate user of the site), the operator should make: “a modest charge to the motorist of no more than £20 for a 14-day period”, before reverting back to the previous charge amount. The operator in this case has not offered the appellant the discounted rate of £20. Due to this, the operator has acted incorrectly during the appeals process. As a result of this, the parking charge notice has been issued incorrectly. I hope the appeal will be allowed due to this

Coupon-mad

Fine if all that is under 2000 characters (not words!) on the restricted portal.  I think that’s excessive. We suggest bullet points not sentences. 

Clearly the driver was a genuine patron who simply didn’t key in their VRM because the keypad wasn’t clear and obvious (or wasn’t working, whatever the facts were).  The driver doesn’t have to prove patronage in their appeal but they should say they were, now.  

The keying error point is vital to get across now so that the Assessor agrees. 

muslimahi

Thank you! comment submitted with 500 characters to spare

-The Driver was a genuine user of the premises but the signage failed to explain the electronic keying of VRM system.

-The operator’s response in point 12, makes it clear that there is a electronic terminal for the input of VRM.

-Keying errors are dealt with by the British Parking Association’s Code of Practice section 17. Section 17 of the BPA Code of Practice states

 “Technology is being used more and more by parking providers as an aid to car park management.  Irrespective of whether a parking facility is off-street or on-street, the increased use of technology will often require a motorist to correctly enter their vehicle registration at a pay and display machine, parking kiosk or at a validation terminal inside the location in instances where parking is offered at a reduced rate or free of charge.”

-Not entering the registration at all is a major keying error. The British Parking Association states that when a major keying error has been identified, or if the motorist was a legitimate user of the site), the operator should make: “a modest charge to the motorist of no more than £20 for a 14-day period”, before reverting back to the previous charge amount. 

-The operator in this case has not offered the appellant the discounted rate of £20 at any point. Due to this, the operator has acted incorrectly during the appeals process. As a result of this, the parking charge notice has been issued incorrectly. I hope the appeal will be allowed due to this 

KeithP

muslimahi said:

-The operator’s response in point 12, makes it clear that there is a electronic terminal for the input of VRM. 

Seems strange that you would be putting forward CE's argument for them, but what's done is done.


Would've been better saying something like -
It only became clear upon seeing the operator's response to my appeal that an electronic terminal should've been used.