POPLA denied appeal

Khaggis

Umkomaas said:

Trainerman said:

Wasn't there a case where the Judge ruled the contract started from when the machine accepted the money ? This would resolve the claim against the OP I think. I will go and see if I can find that case. Regulars may well know it off by heart !

NCP GREEN BUTTON APPEAL CASE

https://www.bailii.org/ew/cases/EWCA/Civ/2019/854.html

This is good! Thank you so much!
My main worry now is that it states a pcn should not be sent out to overstays of less than 10 minutes. So if the reg was correct, or if they checked for errors they wouldn't have issued one. However, one was issued because they believed it to be a nonpayment.
This was proven wrong, but because there was one issued and because there is a technical overstay of 8 minutes (which is still less than the 10 minutes stayed by the bpa) and a pcn was already issued, is it enforceable? Or is it still unreasonable?

Coupon-mad

It's unreasonable of course as it allowed no consideration period but it was one that would have been issued anyway, because they say the total 'stay' was exceeded by 11 minutes.

So they say...but not necessarily.

They are going by two different camera timers that are not synchronised.

You'll be pointing that out in defence.

Hmmm... I'd email ParkingEye again using enforcement@parkingeye.co.uk (goes to a different team than appeals did) and state that:

- the PCN that they are relying on is fatally flawed because its reason for issue was a 'O' or '0' keying issue (not even an error);

- when that was realised, instead of cancelling it, they changed tack and alleged the car had been onsite for 11 minutes too long;

- that wasn't what the PCN was issued for and the BPA CoP grace period alone is a ten minute minimum, not maximum, which allows for no consideration period at all;

- the contract (sign) could not be read until the car was parked, so it didn't begin at the entrance in moving traffic and no Judge will agree with their flawed position;

- this renders it an unfair consumer contract.  Drivers must be allowed time to park and read the terms before being bound by a contractual term;

- this situation only arises because the BPA (run by and for parking firms) amended their Code of Practice to unreasonably remove the consideration period in cases where people stay;

- the Government has now put this unfair amendment right in the new statutory Code of Practice, as ParkingEye well know.  They have effectively confirmed that Kelvin Reynolds' position (published by the BPA ) was correct all along because all car parks now have the consideration plus grace period restored, going forward;

- if they try a court claim the Defendant will use the new statutory Code and compare the old BPA CoPs to expose what happened for the farce it was, due to the BPA chopping and changing position at the behest of members including the largest, ParkingEye;

- The Parking Industry lost that argument in the face of the BSI and DLUHC.  Now that the first truly independent Code is in place and being implemented this year, the failed BPA CoP will fall away.  It was always unfair and therefore, unlawful regarding the 'now you see it, now you don't' nature of the consideration period term;

- cite the NCP v HMRC green button case and say how it helps you;

Finish by requiring evidence that the 'in and out' cameras were synchronised because you believe they were not calibrated to the exact minute.  It seems unlikely that payment was made within less than 3 minutes of driving in at the entrance and you understand that the entrance camera was running to a different clock than the 'out' camera and the payment machine, which produced a ticket allowing you to stay until xx time.

Say that given they can't prove their timings and haven't won the consideration/total stay argument with Government they are not going to win in court either.

The POPLA decision is unreliable and indeed hopeless, being made by a non-legally trained nail technician, so they should cancel the PCN as they should have done at appeal stage instead of leading a credulous POPLA assessor armed only with template 'computer says no' answers, up the garden path.

Khaggis

This is incredible! Thank you so much! I'll draft a reply (which to be honest will mainly be a copy and paste of what you've sent me) and post it here for approval before you send it and update the results. Again thank you so so much!!! You are all incredible!

Khaggis

ok, i've had a play with what you sent me. How does this look for an email?

              R.E. Ref:XXXXXX/XXXXXX, dated XX/XX/2021  

Dear Sir/Madam, 
I am writing again, in response to your letter dated XX/XX/2022, yet again demanding payment for an offense that I have denied multiple times. As you are now threatening me with court proceedings, I would just like to note a few things wrong with your claim.

The PCN that you issued me - and are relying on - is fatally flawed. Its reason for issue was an 'O' or '0' keying issue. When this was then realised, instead of cancelling it, you changed tack and alleged the car had been onsite for 11 minutes too long; this was not what the PCN was issued for and the BPA CoP grace period alone is a ten minute minimum, not maximum, This means your claim allows for no consideration period at all.

The contract (sign) could not be read until the car was parked, it did not begin at the entrance in moving traffic. This renders it an unfair consumer contract.  Drivers must be allowed time to park and read the terms before being bound by a contractual term - this situation only arises because the BPA amended their Code of Practice to unreasonably remove the consideration period in cases where people stay. As I am sure you are well aware, the Government has now put this unfair amendment right in the new statutory Code of Practice, and have effectively confirmed that Kelvin Reynolds' position (published by the BPA ) was correct all along because all car parks now have the consideration plus grace period restored, going forward. If you still insist on trying a court claim, please note I will use the new statutory Code and compare the old BPA CoPs to expose what happened for the farce it was, due to the BPA chopping and changing position at the behest of members.

It is also worth noting the Case of NCP vs HMRC Dated 02/05/2019.
(ref: https://www.bailii.org/ew/cases/EWCA/Civ/2019/854.html)
section 18 states that “The best analysis would seem to be that the contract was brought into being when the green button was pressed. On that basis, the pressing of the green button would represent acceptance by the customer of an offer by NCP to provide an hour's parking in return for the coins that the customer had by then paid into the machine”.
This only strengthens my previous argument and claim that my contract with you started when the purchase of my parking ticket was processed, at 13:49, not upon entering the car park, at 13:46, which is the main basis for your claim. This puts me well within the minimum grace period of the BPA CoP and therefore not liable to receive and be enforced the PCN that you keep pushing onto me.

Furthermore, I also require evidence that the on-site 'in and out' cameras were synchronised, as I believe they were not calibrated to the exact minute.  It seems unlikely that payment was made within less than 3 minutes of driving in at the entrance and I understand that the entrance camera was running to a different clock than the 'out' camera and the payment machine, which produced a ticket allowing you to stay until 14:49.

On a final note, If you do decide to take this to court, please be aware, that if I am successful in my defence against you, I will be filing for recovery of assessed costs on my end too, including, but not limited to:

·         Research and preparation of defence as litigant in person

·         Any printing of copies of witness statement and skeleton argument and postage

·         Any loss of earning from having to take the day off work

·         Mileage driven to attend court and return

·         Car parking on day of hearing

Therefore, it is in both of our best interests for you to cease and desist this claim.
Yours Faithfully,
Khaggis

Hopefully this is good enough. Thanks again for this. I'll wait for confirmation before i send it.

Coupon-mad

 Very good apart from 'you' here!

"which produced a ticket allowing you to stay until 14:49."

Khaggis

Coupon-mad said:

 Very good apart from 'you' here!

"which produced a ticket allowing you to stay until 14:49."

Good spot! Changed "you" to "me" and sent it. I'll keep you posted. Thank you for that! Do you think there's a chance they might actually drop it at this point?

Coupon-mad

Yes, I do.

ParkingEye's enforcement team are pragmatic.  Seen it killed off before, and done it myself loads of times (for other people) at LBCCC stage, perilously close to court and PE have given up when challenged robustly.

It's about making yourself and your case too much trouble.

Khaggis

Yeah that makes sense. Well here's to hoping! I'll keep you posted. If I'm successful I owe you a beer/wine/whatever you drink lol.

Le_Kirk

I am writing again, in response to your letter dated XX/XX/2022, yet again demanding payment for an offense that I have denied multiple times. 

It is not an offence (note the spelling) it is an event or an issue

Half_way

Get back to the landowner and remind them that they are jointly and severally liable for the actions of their agents, and should this matter continue this may also include all your costs, including but not limited to court costs, time, and other expenses, claimed against the principal