ECP PCN POPLA appeal help

Jamran

Coupon-mad said:

OK so now you will need to write a POPLA appeal.  Your trump card must be those signs, both of which have reference to Open Parking, an IPC member:

https://www.openparking.co.uk/about-us/

ECP have added some badly placed stickers on the sign in the pole, but it still shows both a BPA roundel and an IPC one, plus it says that the data will be processed by Open Parking and gives their privacy notice webpage address and above it, the contract is with Open Parking, who take no responsibility for the land.  Below it, you have a sticker, bottom right that claims Open Parking's terms mean that the contract is somehow with Elite Car Parking Management.

But without any data privacy notice, which must be a breach of the BPA CoP (go read what it says about privacy notices).

The sign up on the wall doesn't have a BPA roundel at all.   Looks like it's all about Open Parking and the IPC.  It would be good to get a close up of that sign and any signs at the entrance as well.

Secondly, even if POPLA think that a sign with two different operators on it is somehow not ambiguous and doesn't breach the doctrine of contra proferentem (which it clearly does!) the sign also discloses the landowner as East End Homes.  A disclosed principal means that the contract is with East End Homes, in fact, especially where an agent takes no responsibility for the land (as the signs says, albeit Open Parking's words). 

The authority of Fairlie v Fenton (1870) LR 5 Ex 169 is authority for the legal position, that where there is a disclosed principal, an agent cannot sue. 

Therefore the operator is not established as the creditor and has no standing to litigate and is merely acting as an agent, issuing charges on behalf of the principal, the disclosed landowner.  And who is able to do this, Open Parking or Elite?  BPA or IPC? How is a consumer supposed to have formed a contract, and who with?  East End Homes?  Elite?  Open Parking?

Thanks.

As there is no observation time on the ticket, can this be part of my appeal? They said that because the car was parked out of a bay, it is an immediate PCN. Is this true? 

Jamran

Coupon-mad said:

OK so now you will need to write a POPLA appeal.  Your trump card must be those signs, both of which have reference to Open Parking, an IPC member:

https://www.openparking.co.uk/about-us/

ECP have added some badly placed stickers on the sign in the pole, but it still shows both a BPA roundel and an IPC one, plus it says that the data will be processed by Open Parking and gives their privacy notice webpage address and above it, the contract is with Open Parking, who take no responsibility for the land.  Below it, you have a sticker, bottom right that claims Open Parking's terms mean that the contract is somehow with Elite Car Parking Management.

But without any data privacy notice, which must be a breach of the BPA CoP (go read what it says about privacy notices).

The sign up on the wall doesn't have a BPA roundel at all.   Looks like it's all about Open Parking and the IPC.  It would be good to get a close up of that sign and any signs at the entrance as well.

Secondly, even if POPLA think that a sign with two different operators on it is somehow not ambiguous and doesn't breach the doctrine of contra proferentem (which it clearly does!) the sign also discloses the landowner as East End Homes.  A disclosed principal means that the contract is with East End Homes, in fact, especially where an agent takes no responsibility for the land (as the signs says, albeit Open Parking's words). 

The authority of Fairlie v Fenton (1870) LR 5 Ex 169 is authority for the legal position, that where there is a disclosed principal, an agent cannot sue. 

Therefore the operator is not established as the creditor and has no standing to litigate and is merely acting as an agent, issuing charges on behalf of the principal, the disclosed landowner.  And who is able to do this, Open Parking or Elite?  BPA or IPC? How is a consumer supposed to have formed a contract, and who with?  East End Homes?  Elite?  Open Parking?

I get the gist of what you are saying here but am finding it difficult to tidy it all up. 

Should I put this all under the usual "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" or dedicate its own heading? if so, what should i call it? also, do I include privacy notice issue under this or elsewhere?

Also, as my vehicle is leased, do i include the fact that no NTH was issued? I got the ticket on windscreen and then appealed online, which they rejected. They included POPLA code in that rejection so there was no NTK or NTH issued. 

Apologies for asking so many questions but I feel  overwhelmed 

Coupon-mad

Don't bury your winning points in the signage paragraph.  You can copy and adapt my words. 

There are no 'rules' as such, about observation periods if a car is out of a bay although you could add a paragraph about the BPA grace period on arrival, to give a driver a chance to decide whether to stay or go.

As well as that, you now have two other potentially winning points, now you've mentioned the car is leased/hired but no NTK nor NThirer was issued at all.  The driver was not identified(?) but the keeper/hirer appealed when they learnt about the windscreen PCN, as is their right.

The only way an operator can hold a keeper or hirer liable is under the POFA which requires them to get registered keeper data from the DVLA and issue the notices and enclosures set out in para 8 and then para 13 and 14 of schedule 4 in a Hire case.  There is nothing in POFA that says the postal notices can be dispensed with where a keeper appeals to a windscreen PCN.  Different if the driver had appealed but they didn't.

Jamran

Here is my appeal. I had to submit it last night as it was the last day 

hope it’s ok?

https://www.dropbox.com/s/exy0uoyfeh1f1m2/j%20ecp.docx?dl=0

Fruitcake

Jamran said:

Here is my appeal. I had to submit it last night as it was the last day 

hope it’s ok?

https://www.dropbox.com/s/exy0uoyfeh1f1m2/j%20ecp.docx?dl=0

PoPLA codes last 32 days, so you actually had a couple more days for the regulars to check it, but hopefully it won't matter

Coupon-mad

All good except for no GPEOL.  No idea how that crept in there!

Jamran

Fruitcake said:

Jamran said:

Here is my appeal. I had to submit it last night as it was the last day 

hope it’s ok?

https://www.dropbox.com/s/exy0uoyfeh1f1m2/j%20ecp.docx?dl=0

PoPLA codes last 32 days, so you actually had a couple more days for the regulars to check it, but hopefully it won't matter

Is it? The rejection letter stated I had 28 days from the date of the letter! Scum bags

Jamran

Coupon-mad said:

All good except for no GPEOL.  No idea how that crept in there!

Saw another appeal and figured what the heck! Could it be costly? Or won’t matter?

many thanks 

1505grandad

Re Para 6  -  are you using/quoting from BPA CoP dated January 2020 version 8?

Is the hire company not the registered keeper?

Jamran

1505grandad said:

Re Para 6  -  are you using/quoting from BPA CoP dated January 2020 version 8?

Is the hire company not the registered keeper?

Do you mean POFA? Sorry which section are you referring to? Yes the hire company is the registered keeper