(Update - now court claim, defence attached) - Advice on POPLA comments to operator evidence

EpsomJim

Thanks all for your help so far. And apologies, I have been unwell so this defence is coming later in the day than planned.

I have followed the template in the sticky thread, with one change I have removed the paragraph about lack of landowner authority evidence given the operator provided a redacted copy of the contract during the POPLA process. Indeed, some of the specifics of my defence question the validity of that contract (see below).

Below are the sections that I have created to sit from para 3 of the template.

Three questions:

1. Does this defence feel enough of a defence, or are there aspects that would be better in the Witness Statement?
2. Should the portion about the contract validity and specific clauses (paras 5-9) be its own section, or is it ok as is?
3. The point in para 17 of the template about 'if seeking keeper/hirer liability' - does that hold in situations where someone has named themselves as the keeper and driver in their defence?

The facts as known to the Defendant:

1.     It is admitted that the Defendant was the registered keeper and driver of vehicle registration XXXX XXX which is the subject of these proceedings.

2.     It is admitted that on XX.XX.XXXX, the vehicle was parked at [location of car park]. The Defendant and his family had stopped there to purchase refreshments from a local café on their way to a holiday.

3.     As this was to be a brief stop of no more than a couple of minutes the Defendant’s wife and family stayed in the car, with the engine idling. In the end, the stop took slightly longer than expected due to a queue in the café. In total, the car was stopped for five minutes and sixteen seconds.

4.     Clearly, the Defendant believed that the parking spaces immediately adjacent to the row of shops on [road] served those shops, rather than being restricted to the residents of [location] (flats immediately above the shops). This is unsurprising given the poor quality of signage on site. There was no entrance sign on the side of the car park that the Defendant entered at, and other signage referring to conditions of parking was either not in positions that made them easy to see, nor in clear, concise language.

5.     Through the appeals process with both the Claimant and Parking on Private Land Appeals (POPLA), it has become apparent to the Defendant that the contract on which the Claimant relies upon to issue Parking Charge Notices (PCNs) is deficient, and that provision for the particulars of the parking event is made for in the contract.

6.     The Claimant provided a copy of their contract to POPLA, which the Defendant does not believe accords with appropriate legislation. For a contract to be valid in situations such as these it must be drawn up between the Claimant and freeholder (or, if with an agent for the land, supported by a separate contract between freeholder and agent). It must also be signed by two officers of each party entering into the contract.

7.     It is the Defendant’s belief that the contract on which the Claimant is relying is deficient in two ways. Firstly, there is only a single signatory from each party. Secondly, the freeholder signatory does not correspond to any of the named officers given at Companies House for the freeholder – XXX. The contract also lists another party, XXX. Again, the freeholder signatory does not correspond to any of the named officers given at Companies House for that company. In addition, initials given on each page do not correspond to the initials of either signatory,

8.     For these reasons, the Defendant does not believe that the Claimant has express or implied authority to form a contract in accordance with section 43 of the Companies Act 2006, nor is the contract validly executed in accordance with section 44 of the same Act. If the contract is not valid, then the Claimant can issue no Parking Charges under it, and the Defendant cannot be in breach of any Terms. The Claimant is put to strict proof that the contract is valid.

9.     Even if the Claimant can prove validity of the contract, clause 11v of the contract clearly states that a PCN will not be issued to ‘vehicles where the driver is present with the engine running (For up to 15 minutes only). As detailed above, at the time in question the vehicle was attended throughout and with the engine idling, rather than left parked with the engine off. As such, the Claimant cannot have served the PCN properly, as there was no breach of the Terms as stated.

Le_Kirk

Surely you stopped to read the signs and terms and conditions before deciding if you wanted to pay the fee.  Having determined that you didn't want to pay the high price and that you didn't like the t&c's you left!  A lot of that defence should be left for the witness statement (WS); a defence is a series of short, punchy legal/technical arguments that introduce the points allowing you to expand on them and provide evidence to back up your defence in the WS.

EpsomJim

Le_Kirk said:

Surely you stopped to read the signs and terms and conditions before deciding if you wanted to pay the fee.  Having determined that you didn't want to pay the high price and that you didn't like the t&c's you left!  A lot of that defence should be left for the witness statement (WS); a defence is a series of short, punchy legal/technical arguments that introduce the points allowing you to expand on them and provide evidence to back up your defence in the WS.

Thank you for your response Le_Kirk.

In their evidence to POPLA, the operator provided one of the MNPR stills that they said showed I 'used the facilities' (me carrying drinks), and I wonder if that would negate the argument of getting out, reading the sign, and leaving.

Given the engine was running and the car was attended, should I instead argue that the car was stopped, rather than parked? In tandem with the clause I've mentioned in their contract, that should throw further doubt on the validity of the claim. If so, I can write a paragraph to that effect that replaces all the narrative around why stopped.

Also, what is your/other users' point of view on the contractual paragraphs. Should they also be slimmed down, to the extent I merely say I don't believe the contract is properly formed, and there is a clause that means the claim cannot go forward? My view was the detail in those paragraphs was a technical argument, it should stay here rather than going into a WS.

Le_Kirk

Engine running or not has no bearing on parking.  Search the forum for "stopping is not parking" there was a case (that the defendant won) based on those words by a judge.  The photograph is "somebody" carrying a tray of drinks, could have been a passenger in the car whilst the driver read the terms and conditions (t&c's) and checked out the price of staying and buying a ticket.
The legal/technical aspect is "the car had stopped for five minutes and sixteen seconds" whilst the rest of that sentence about what you/your family were doing is narrative best saved for WS.  Treat every paragraph like that and separate the technical/legal from the narrative.  Did the t&c's state that you had to purchase a ticket within 10 minutes?  If so, your defence is that five minutes and 16 seconds is not 10 minutes!  You need to think how you can prove that, did the PCN show the parking duration?

Coupon-mad

In their evidence to POPLA, the operator provided one of the MNPR stills that they said showed I 'used the facilities' (me carrying drinks), and I wonder if that would negate the argument of getting out, reading the sign, and leaving.

Yes it would negate it.

Stick to the truth but you can say the car wasn't actually left parked, and had the person sneakily taking photos on their phone from a distance (for a self-ticketing bounty reward) approached the car in an open and honest manner they'd have seen the driver who could have moved on if required.  Instead it is all incentivised multiples of penalties done in a predatory manner for reward.

There is no such thing as MNPR.

The industry made it up to sound like 'ANPR' and hide the fact it's just some waster with nothing better to do than lurk and take photos on their iPhone then upload them behind the driver's back, for £15 a pop.

In the Govt Steering group working on the new draft Code of Practice since 2020 (whose work I won't go into) let's just say I laughed very loud when the terms 'MNPR' and 'carmaggeddon' were both uttered.  Hilarious!  Regulars may have noticed that MNPR doesn't appear in the draft statutory Code...because it's not a thing!

EpsomJim

Le_Kirk said:

...The photograph is "somebody" carrying a tray of drinks, could have been a passenger in the car whilst the driver read the terms and conditions (t&c's) and checked out the price of staying and buying a ticket....

Did the t&c's state that you had to purchase a ticket within 10 minutes?  If so, your defence is that five minutes and 16 seconds is not 10 minutes!  You need to think how you can prove that, did the PCN show the parking duration?

Thanks again. Sadly, the images that were captured throughout the incident (see here - the series called 'PCN photo'  hxxps://ln5.sync.com/dl/c731c5c10/thtq36jc-uuxpqtsc-zqed2peu-swj6r48b ) show the driver exiting and then returning with drinks, so I fear that won't wash.

The parking was a residents' bay, so the PCN was issued for a lack of permit. Yes, it did show the duration of parking (which I think they inferred from the timestamp on the series of images they took).

Coupon-mad said:

Stick to the truth but you can say the car wasn't actually left parked, and had the person sneakily taking photos on their phone from a distance (for a self-ticketing bounty reward) approached the car in an open and honest manner they'd have seen the driver who could have moved on if required.  Instead it is all incentivised multiples of penalties done in a predatory manner for reward.

There is no such thing as MNPR.

This is fascinating. The term MNPR was used by the operator's Data Privacy Officer in response to my SAR. Previously, I had assumed the images were CCTV (the date stamp at the bottom made it seem so). This is what the DPO said:

[PCN number] was issued xx/xx/xxxx as the vehicle was on site and was not pre-authorised to do so. The parking Charge was issued using a Manual Number Plate Recognition (MNPR) camera. This means that the camera captures photographs throughout the parking event. Please note that the camera does not record CCTV footage. As the Parking Charge was issued using a camera, no Parking Charge Notice (PCN) was affixed to the windscreen at the time of the contravention.  

So you are saying that someone was stood there taking photos of the bays? I'm going to take another look at the site later, see what I can see...

Coupon-mad

You can tell by the height of the camera as opposed to the car. If it's clearly photos taken from a height then it might be CCTV manned by someone.

The term MNPR isn't banned, nor anything to get excited about (they can call it whatever they want, after all) but I just wanted you to know it's not the special acronym they want you to think it is, for some sort of tech.  It's a term used to bamboozle the public into thinking it's similar to ANPR.

CCTV is not ANPR but let's not get off on too much of a tangent!

patient_dream

The parking Charge was issued using a Manual Number Plate Recognition (MNPR) camera. This means that the camera captures photographs throughout the parking event.

Not only do the BPA have a bunch of scammers as members, they also have idiots

As Amazon don't provide MNPR cameras,....THEY DON'T EXIST ???

Are we now to call the parking goons with their cameras.. MNPR'ers

EpsomJim

Coupon-mad said:

You can tell by the height of the camera as opposed to the car. If it's clearly photos taken from a height then it might be CCTV manned by someone.

OK, gotcha. These images appear to be taken from height, with the same angle of image each time, so I suspect it's a manned camera. I won't make any reference to it in my defence.

EpsomJim

Ok - here is my updated defence. I have slimmed down wherever possible. Have included a reference to the case cited in reference to stopping and parking being different things. I have also re-structured my point on the contract, so it's (hopefully!) easier to see what I'm talking about!

Question - should I quote the relevant bits from the Jopson v Home Guard case, or do I rely on them being looked up (as with many of the references in the template defence)?

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