POPLA: now responding to evidence... Fined in my work car park - have I messed up already?

shgtsk

Please see latest post regarding POPLA appeal and responding to evidence

Hello guys,

Every year or so I seem to have a run in with Total Scamming (Parking) Solutions, you guys have helped me out in the past but this time I think I've probably shot myself in the foot already.

I have a permit for my work car park, for which I have to top up my credit via a web portal at various intervals. I have recently been issued a PCN for Unauthorised Parking due to forgetting to top up my account and parking without credit on one occasion (£1.75 worth). They did this via an ANPR system. For clarity, I was away and didn't realise for a few weeks, not parking in the intervening time, and then received a postal PCN. I did receive one reminder email but didn't recognise it.

I then did what I really shouldn't have done, which is make an appeal explaining what happened and hoping they would see reason and cancel the PCN, it being a work car park and my being a regular user, forgetting one just one occasion, etc. I argued hat I was authorised to park there, as I had a parking permit, so their charge of "unauthorised parking" didn't make sense. I also topped up the account and assured them that they could take the additional credit out, etc.

Well... they denied the appeal - naturally. The parking department at my place of work have made it pretty clear that they have washed their hands of anything related to the parking and are happy for TPS to make life harder for the employees that park there.

Should I have sent the template from the Newbies thread? Definitely. Unfortunately, I forgot that I wasn't dealing with normal human beings for a minute. My question is: as my appeal was denied, I can't realistically deny being the driver as it's the car I park in my work car park and it was a pretty clear case of my forgetting to top up my account, do you think it's worth fighting?

Thanks for your time.

 

Le_Kirk

What did your employer do/say when you complained that dealing with this bunch of money grabbing extortionists (word used by MP in introduction to the recent new Code of Practice) is detracting from the time and your ability to carry out your job properly?

Coupon-mad

Of course.  Try POPLA anyway.

And see if your employers will ask the property owners or management to step in and cancel it.  No-one pays these.

shgtsk

Thank you both. I complained to my employer but was told that their intervening on my behalf breaches their contract with TPS!

I am very short on time to submit the POPLA appeal, the 28 days have passed but I believe the code should still be valid today as they last 32 days?

I have stitched together an appeal from the links in the newbies guide, with an additional point first about my having a valid permit. TPS may argue that my permit was valid but funds were not added to cover it, I suppose.

Your thoughts much appreciated, have I missed anything? Is anything not relevant? For point 2, regarding signage, I have pictures showing that no terms and conditions or parking charge is shown at the entrance to the sight. Also, the signage itself is very small and no Ts and Cs are legible without zooming in closer than the eye can see. Should I include  Thank you very much!

POPLA Ref: <>

Total Parking Solutions PCN Ref: <>

Location: <>

Vehicle: <>

A postal NtK was issued on 09/03/2022 and issued to me, the registered keeper of the vehicle for an alleged contravention of “Unauthorised Parking”. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons:

1)    The vehicle in question, <>, is named on a current and active parking permit for this car park.

The permit is issued via an online portal and a screenshot is provided in the included documentation. Please note the start date of the permit (28-02-2020) prior to the issue date of the PCN (09/03/2022). Please also note the list of registrations named on the permit, including AG07KNF, and the Permit Status which is Approved.

1)    The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.

In this case, no other party apart from an evidenced driver can be told to pay. 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 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 cannot transfer the liability for the charge using the POFA.

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.''

 

 

shgtsk

2)    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:

http://imgur.com/a/AkMCN

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:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

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. 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.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://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.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.

shgtsk

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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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)    This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis

The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.

In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.

At the Supreme Court in Beavis, it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:

http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.

In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.

shgtsk

Hey folks, TPS have responded to my evidence stating the following:

ANPR Unauthorised Parking The Terms and Conditions of parking at this location are clearly displayed at the entrance and throughout the car park. It is the vehicle driver’s responsibility to ensure that when parking on private property they do so in accordance with the Terms and Conditions in force at the particular location. The vehicle in question was observed by our Automatic Number Plate Recognition system as being parked in an unauthorised area, which was in contravention of the car parks Terms and Conditions of use. The contravention date for this charge is the 02-03-2022 and the issue date for the charge is the 09-03-2022. The charge was issued within 14 days and is therefore POFA 2012 compliant. Where a driver is not named, the keeper may be held liable. PAYG permits must have credit available to be taken for every visit as part of the permit terms and conditions. Please see credit log for this permit which shows that there was no credit available for the date and time in question, and that credit was added after the parking charge was issued. Please note that the permit credit was topped up on the 14-03-2022. The appellant appealed to the appeals team on the 14-03-2022. The signage at this location is ample and approved by the BP. Please see signage map and images provided. Please note, in the case of Beavis vs Parking Eye, the Supreme Court ruled in favor of Parking Eye. Please see the contract (redacted for GDPR) between TPS and the University of Surrey, granting permission for TPS to enforce the terms and conditions. 

They have included pictures of the various signs, and screenshots of my payments. Their signs aren't great and nowhere do they state that credit has to be added in advance of parking. Furthermore they've supposedly evidenced that my permit was invalid on that day with screenshots of their computer system, but it seems intentionally confusing. They have stated that the screenshot of payments shows that I had no credit in my account when I parked, however, it only shows that I had no credit in my account the next time I topped it up, after the date I parked, not that I had no credit on the date that I parked as no running total is provided - only a current total. E.g. current total £2.00, parking charge -£1, parking charge -£1, topup £2, parking charge -£1... etc. I did, however, pretty much admit this in my first appeal email as I talked about "going into negative funds, if you will".

I did also note in the contract that my employer does have the right to intercede on my behalf, even though they've continuously stated that they can't.

I'd really appreciate some advice on how to respond to their evidence to give myself the best chance of winning the appeal. Thanks in advance.

Coupon-mad

I did also note in the contract that my employer does have the right to intercede on my behalf, even though they've continuously stated that they can't. 

Show that to your employer and say their agent misled them...clearly they had the right in the signed contract.

POPLA comments stage - and what to respond about - is covered in the 3rd post of the NEWBIES thread.