Feedback on POPLA Appeal Draft

Tulip15

Hello,

Please could I get some feedback on this draft?  I've spent hours on this today and have read through lots of examples so I'm hoping i've covered everything.  I need to check through for spellling /grammar errors etc yet.  I also have a few photos to add in but I'm not local to the car park so I cannot go and take more.  Point 4 I will copy from the Newbie thread about signage but it makes my post too long on here to post. 

Thank you.

As the keeper of the car, I have contacted the driver of the event, and was allowed to quote the words here: "When arriving back to the car park, numerous attempts were made to pay to no avail. It was clear the machine was out of order, as were all machines on site, with a message to indicate this on screen when payment failed (see photo 1 below). The signage did not make it clear what to do in such circumstances and neither were there clear instructions on the machine to tell us what to do, in such event. No other clear signs or notice were displayed advising of what to do in this situation.  An attempt was made to call ECP, the number of which was cited on a sign, however this was a pre-recorded message saying the office was closed (see photo 2 below).”  Based on the quotation, I believe the driver of the event could not make a payment due to, unclear signs and a broken ticket machine with no clear further instructions. 

I rely on the doctrine of Frustration of Contract in my defence. The contract was formed between the Claimant and the driver, in which the Claimant granted the consideration of paying for parking upon returning to the vehicle. There was, in this case, a change in circumstances which was not the fault of either party, and which rendered it impossible for the driver to perform the contract due to the machine not accepting payment and thus leading to a refusal to accept payment by ECP. 

Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant at the time the contract was breached, and so they have no valid claim for £100 or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 provides authority for this.

In further support, I submit the reasons below to show that I am not liable for the parking charge:

1) Keeper Liability Requirements and the Protection of Freedom ActAs the keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was, I submit that I am not liable to any charge. In regards to the notices I have received ECP has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper (NtK. If all of this information is not present then the NtK is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). The wording of the PCN actually makes it sound like I have little choice but to give up the driver and does not actually state the choice to pay it myself.

2) No genuine pre-estimate of loss
There was no damage nor obstruction caused so there can be no loss arising from the incident. ECP notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that ECP charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

This charge from ECP as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

ECP and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed, I expect ECP might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

No doubt ECP will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''

My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

2) No standing or authority to pursue charges nor form contracts with drivers
ECP do not own the land mentioned in their NtK and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against parking agents which establish that they have no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

3) Flawed landowner contract and irregularities with any witness statement
Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require ECP to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.

4)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ECP and the driver. 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

5) ANPR Accuracy and breach of the BPA Code of Practice 21.3

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that ECP have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system. I require that ECP present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.

 6) No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.  ECP’s NtK simply claims that the vehicle “entered on 25.06.22 at 17.11 and departed at 22.29”. At no stage does ECP explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.  ECP uses ANPR (while failing to comply with the data protection 'ICO Code of Practice' applicable to ANPR) to capture images of vehicles entering and leaving the vast unbounded and unmarked area to calculate their length of stay.  Any vehicle passing by will be captured by ANPR. ECP, however, does not provide any direct evidence of its alleged violation. It is not in the gift of ECP to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result. By virtue of the nature of an ANPR system recording only entry and exit times, ECP are not able to definitively state the period of parking. I require ECP to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

KeithP

Hello and welcome.

That's a really old template you have based your appeal on - the clue is No genuine pre-estimate of loss which ceased being a valid argument in 2015.

You seem to be referring to the wrong version of the BPA's Code of Practice.
For example, your point 5 is headed "ANPR Accuracy and breach of the BPA Code of Practice 21.3".
The version of the CoP applicable to your situation is version 8, issued in January 2020 and this is the entirety of the current paragraph 21.3...


Can I suggest you have a look at the third post of the NEWBIES thread for up to date guidance on creating a winning PoPLA appeal?

Tulip15

Ok, thank you.  Back to the drawing board.  Might be easiert o actually pay the £60!

SergeiK

Tulip15 said:

Might be easiert o actually pay the £60!

The guys and girls are fantastic here, but none of them will be telling you to pay these scammers 

To my knowledge PoPLA recently found against ECP on signage particularly the size of the sum of charges so have a look in the PoPLA decisions, you’ll see it referenced in a lot of recent appeals

Coupon-mad

Tulip15 said:

Ok, thank you.  Back to the drawing board.  Might be easiert o actually pay the £60!

Good joke!  Don't do that 😀

Also you need to add a bit more to the standard para on signage, copying the wording that POPLA Assessors have been using recently about ECP signs and how small the £100 is on the sign.

You will find that in POPLA Decisions, in 2022 posts there.