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Unfair PCN at Morrisons - POPLA Stage Help
I will be speaking to the manager of Morrisons today to see if they can just cancel it directly as this was really unjust.
My partner parked in morrisons car park in Wood Green and they have an option where if you want to stay longer than the 2 hours you can pay on the app to extend your stay. She tried to do this however their app is rubbish. I had previously used that system to extend stay therefore the car registered to the VRM is on my phone. The app did not let her add the car to her account and she was not able to get back in time to move it. Imagie of what is displayed when trying to pay https://imgur.com/a/UzVKCsA
She contacted them with this message:
They replied with:
MatthewCustomer
Care Senior Driver Specialist
Not the most helpful response but what can you do.
The initial NTH was appealed with:
Ref PCN xxxxx VRM yyyyyy
I am the hirer/keeper of the above vehicle and am in receipt of the PCN you issued. I have no liability on this matter as you have failed to meet the requirements of Schedule 4 of The Protection of Freedoms Act 2012 namely, but not limited to, failing to supply the additional documents mandated by section 14 (2) (a) of the Act. You cannot therefore transfer liability from the driver at the time to me, the hirer keeper..
There is no legal requirement to identify the driver at the time and I will not be doing so.
Any further communication with me on this matter, apart from confirmation of no further action and my details being removed from your records, will be considered vexatious and harassment. This includes communication from any Debt Collection companies you care to instruct.
Yours etc.
Thought they would give up here as they clearly did not follow POFA but it continues.
Potentially should have also added the fact that the parking app just did not work but we're here now I guess.
I have attached the NTH and their reply https://imgur.com/a/pjOvyNj
Appreciate all help and thanks for reading through the long post
Comments
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You really need to spell out exactly how ECP have failed to use POFA properly to transfer any driver's liability to the hirer.
You touched on that briefly in your appeal to ECP when you said...I am the hirer/keeper of the above vehicle and am in receipt of the PCN you issued. I have no liability on this matter as you have failed to meet the requirements of Schedule 4 of The Protection of Freedoms Act 2012 namely, but not limited to, failing to supply the additional documents mandated by section 14 (2) (a) of the Act. You cannot therefore transfer liability from the driver at the time to me, the hirer keeper.Go to town on that.3 -
I see. In the POPLA appeal shall I just use that as a point and go to town as they very clearly did not follow POFA or throw in other stuff like signage and landowner authority etc0
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Your POPLA appeal should include all of the above - see the NEWBIES FAQ Announcement, third post, for relevant, near-template paragraphs to use to build your appeal. The Notice to Hirer PoFA point should be your opening section. Get it right (show us what you've drafted for critique) and a win should follow.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street2 -
Chuck everything in , in order of importance , especially POFA and driver not identified etc, so o keeper liability , but do include no landowner authority and poor signage
Justpark is a mere third party contractor , your beef is with ECP and Morrisons !
I would have followed plan A first , a strong complaint to the store manager , if no joy a written email complaint to the CEO of Morrisons , David Potts !!
These should still be done but ensure that your Popla appeal is uploaded ( choosing OTHER ), this week by day 32 , so by tomorrow or Friday
Parking companies tend to fail to comply with POFA with hire and lease vehicles , no hire or lease documents , so as hirer/keeper you have no legal liability due to ECP not complying with POFA
We never risk a one shot appeal , not unless you are really up to the mark , which most people are not2 -
Thank you both! I’ve been in a similar situation so I’ve got (limited) experience. I’ll get drafting later today. I did try speak to the store manager but they were very clueless and were saying they had a new rule on only cancelling if you have a £60 receipt. I will try to email the CEO also2
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You should be fine as long as the hirer appeals to POPLA citing para 13 and 14 of the POFA, like all the other NTH cases.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD2 -
1) Euro Car Parks has deliberately chosen not to use Protection of Freedoms Act 2012 (POFA). The Notice to Keeper is not compliant with Schedule 4 of the Protection of Freedoms Act 2012
2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
1. Euro Car Parks has deliberately chosen not to use Protection of Freedoms Act 2012 (POFA). There is no hirer liability as the notice to hirer is not compliant with Schedule 4 of POFA
In the case of a Parking Charge Notice (PCN) issued in respect of a hire vehicle, in order to have the right to use the provisions of Schedule 4 of the POFA 2012 to claim unpaid parking charges from a vehicle's hirer, the creditor must:
As per POFA 2012 Schedule 4, paragraph 14(2)(a), the creditor must have given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
POPLA has promised that our case will be independently reviewed by one of its professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice. The requirements set out in Schedule 4 of POFA are quite straightforward for any reasonable professional to understand and we expect that all POPLA assessors shall have a clear understanding of this particular piece of relevant law. It should therefore be very obvious to POPLA that Euro Car Parks has failed to comply with Schedule 4 of POFA.
The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4, POFA; the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge are set out in Paragraph 14.
Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)).
Euro Car Parks did not provide any of the documents (a), (b), or (c)
POPLA must not attempt to presume that the hirer is appealing this PCN on behalf of the driver. For the avoidance of doubt, I am simply exercising my right as hirer to appeal this PCN in exactly the same way as any other vehicle keeper or hirer is entitled to do.
2. 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).
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
3.The signs in this car park are not prominent, clear or legible from all parking spaces and 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 and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.
There was no 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 'ParkingEye 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 were keen to point out the decision related to that car park and those facts only:
(Image here)
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.
Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:
(Image here)
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 sporadically placed, indeed obscured and hidden in some areas as can be seen in the evidence below.
They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. 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 (and does not feature at all on some of the signs). 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 on 2.6.16, 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.
Not only is the text extremely small but at night when it is dark the signs are impossible to see. As can be seen in the images from a pedestrians perspective below.
The letters seem to be no larger than .40 font size going by this guide taken from signazon web blog attached to this appeal.
(Image here)
https://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
(Image here)
https://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx
''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 sales 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:
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, Miss Vine, 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.
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...continued from previous as it was too long
I, therefore, on the basis of the above laid out arguments request that POPLA uphold my appeal and cancel this PCN.
I aim to upload the appeal as a PDF so all the images will be easy to read. The '(Image here)' are the images from the template as you season pros will probably know. Please let me know if you think it is up to scratch. Thanks
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Embed the images , no URL links2
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They will be on the PDF. The links are references1
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