Rugby St Cross Hospital - CPP/ParkingEye

LDast

Definitely no SAR. An SAR, if needed at all, should not be made until after a county court claim has been issued.

Your POPLA appeal is next. You actually have 32 days, not 28 days to file it. There's no reason to delay it though.

Smelly_Dog

My relative never received the 1st NTK only a reminder so we can't be sure if the original notice is POFA compliant. Although others have said that Private Eye/CPP usually are we can't be certain and the only way to find out would seem to be be a SAR? Without seeing the original notice I'm struggling for grounds for an appeal although there ARE plenty of suggestions on the forum.

Gr1pr

Parking Eye, not the magazine !

Use all the possibilities for the appeal 

Assume that the NTK PCN was not compliant. ( You will get a copy in their Popla evidence pack )

Assume no keeper liability 

Assume that the driver was not identified 

Assume that they have no landowner authority 

Assume that the signage is poor or inadequate 

Etc 

Ideally you should have got PALS to cancel it with a complaint, using the royal WE in order to not identify the driver 

You don't need a SAR 

Coupon-mad

Didn't PALS cancel it yet, when you complained?  EXHAUST THAT BEFORE EVEN THINKING ABOUT POPLA.

Smelly_Dog

Waiting to hear back from PALS.
Amongst other things I've politely informed them that, "For many years we have considered the NHS as a partner in the provision of health care. We pay National Insurance and Taxes and you (the NHS) provide us with health care. However, if the NHS is now in the business of extorting vast sums of money from the public it purports to serve and support and acting in an adversarial manner towards its patients then perhaps it is time for us to launch a malpractice lawsuit seeking redress, apologies and financial compensation for the numerous times that we have been the victims of medical  negligence and malpractice at the hands of University Hospitals Coventry & Warwickshire.

We sincerely hope that it doesn't come to this and that you can see fit to instruct that the PCN is cancelled immediately."


Last day for POPLA appeal is Saturday so I have cobbled something together. Will add photos of the poor signage and a copy of the reminder before I send it off. I have zero expectation that POPLA will find in my favour but can at least go through the motions. Go easy on me fellas! I haven't been very well for the last month!

POPLA REFERENCE: XXXXXXX
CPP Invoice no. XXXXXXXXXX
Vehicle Reg: XXXX XXX

Dear POPLA,

I write concerning the above appeal for an invoice issued by Car Parking Partnership.

1) I am appealing as the Keeper of the vehicle. The driver has not been identified and no assumptions can be drawn. CPP have failed to identify the driver. There is no Keeper Liability.

2) A Notice to Keeper has never been received.

The first correspondence that I received from Car Parking Partnership was a REMINDER dated 05/04/24 (see attached.) There is no mention of POFA in this document so CPP cannot rely on POFA to pursue the registered keeper.

The reminder did not arrive until 16 days after the alleged parking.

3) CPP have failed to produce an explanation of the allegation nor have they produced any evidence, other than a PCN Reminder which is a vague template despite a written request for them to do so.

4) CPP have failed to produce a close-up actual photograph of the sign they contend was at the location on the material date as well as any images of my vehicle despite a written request for them to do so.

5) CPP have failed to produce any evidence of the actual grace period agreed by the landowner despite a written request for them to do so.

6) CPP have failed to produce any evidence of landowner authority.

7) The signage is poor or inadequate. There are faded, indistinct markings in the parking bays.

On the 05/04/24, CPP issued a parking charge notice reminder to me (as keeper of the vehicle) demanding £100. There was no windscreen ticket on the vehicle – a Notice to Keeper was never received.

As well as the above as the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

1.       As no Notice to Keeper has ever been received it cannot be POFA compliant so CPP cannot rely on POFA to pursue me as the registered keeper.

2.       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.

The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

At no point have CPP provided any proof as to the identity of the driver of the vehicle; nor have I provided them with the identity of the driver (nor do I intend to).

I have contested this with CPP with regards to their PCN reference xxxxxxxxxx, but they have written to me (dated 29/05/24) to say that my appeal has been unsuccessful and have provided POPLA reference xxxxxxxxxx.

Strangely CPP informed me on 26/04/24 that “ParkingEye have placed this charge on hold for 28 days.”
This in a letter with a CPP Letterhead. I have no idea who or what ParkingEye have to do with anything? The PCN reminder and another two letters have all come from CPP.

I sincerely hope you are able to help me.

Many thanks,

Coupon-mad

Far too short for a POPLA appeal.

Smelly_Dog

I've been working on this all day. Hope it is better.
(I feel like my teacher has given me a bollocking for not doing my homework properly!
 

https://www.dropbox.com/scl/fi/4zsv806ipuneszu3yzpqs/POPLA-APPEAL-REDACTED.docx?rlkey=od8nyhg3yjll1veckhsgxkv0t&st=02gl740h&dl=0

Smelly_Dog

POPLA REFERENCE: XXXXXX
CPP Invoice no. XXXXXXXXX
Vehicle Reg: XXXXXXX

Dear POPLA,

I write concerning the above appeal for an invoice for £100 issued by Car Parking Partnership (CPP) on 27/3/24 alleging a parking violation on 23/3/24.  The first contact I had with CPP was a Parking Charge Notice Reminder dated 5/4/24 which was received on 9/4/24. The reminder did not arrive until 17 days after the date of alleged parking at Rugby St Cross Hospital. A Notice to Keeper has NEVER been received or even SENT as far as I am aware. Only a PCN Reminder.
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. At no point have CPP provided any proof as to the identity of the driver of the vehicle; nor have I provided them with the identity of the driver (nor do I intend to).

I have contested this with CPP with regards to their PCN reference XXXXXXX, but they have written to me (dated 29/05/24) to say that my appeal has been unsuccessful and have provided POPLA reference XXXXXXX.
I am appealing as the Keeper of the vehicle. The driver has not been identified and no assumptions can be drawn. There is no Keeper Liability as it cannot be transferred from the driver to the keeper without strict adherence to POFA.

As the registered keeper I wish to refute these charges on the following grounds:

1) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5) of POFA.
2) CPP lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass.
3) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver. There are faded, indistinct markings in the parking bays and the signs are 7ft in the air with a tiny font that makes them almost impossible to read.
4) CPP have not produced any evidence to show the reliability of the ANPR system.
5) CPP has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
6) CPP have failed to produce an explanation of the allegation nor have they produced any evidence, other than a PCN Reminder which is a vague template despite a written request for them to do so.
7) CPP have failed to produce a close-up actual photograph of the sign they contend was at the location on the material date as well as any images of my vehicle despite a written request for them to do so.
8) CPP have failed to produce any evidence of the actual grace period agreed by the landowner despite a written request for them to do so.
9) Lack of consistency with the name of the operator pursuing the charge.

Strangely CPP informed me on 26/04/24 in their appeal rejection letter that “ParkingEye have placed this charge on hold for 28 days.”
This in a letter with a CPP Letterhead. I have no idea who or what ParkingEye have to do with anything? The PCN reminder and another two letters have all come from CPP.




1) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5) of POFA.

As no Notice to Keeper has ever been sent/delivered/received it cannot be POFA compliant so CPP cannot rely on POFA to pursue me as the registered keeper.


To support this claim further the following areas of dispute are raised:
• No Notice to Keeper (NTK) was ever sent/delivered/received so could not have been within the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
• The PCN Reminder received 17 days after the alleged parking does not warn the keeper that, if after a period of 28 days, CPP has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

The Notice to Keeper (NTK) was never sent/delivered/received so therefore falls outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN Reminder, the specified period of parking ended on Saturday 23rd March 2024. The relevant period is therefore the 14 day period from Sunday 24th July 2024 to Saturday 6th April 2024 inclusive. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN Reminder is Friday 5th April 2024 and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on Tuesday 9th April 2024 (i.e. outside of the relevant period).

The PCN Reminder does not warn the keeper that, if after a period of 28 days, CPP has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:

The notice must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

NO NTK HAS EVER BEEN SENT OR RECEIVED and CPP have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

Smelly_Dog

2) CPP lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

It is suggested that CPP Ltd does not have proprietary interest in the land and are merely acting as agents for the owner/occupier. Therefore, I ask that CPP be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

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) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver.

CPP state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN disprove this because no signage is visible in said images. The keeper made a special visit to the car park to ascertain the positioning and quality of the sign at the entrance to the car park. It is in fact positioned at such an angle that it can only be read by turning and looking back over your shoulder once you have passed it.
Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.

The BPA Code of Practice clearly states that:
18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.”

With this in mind, there was categorically no contract established between the keeper and CPP. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.

If a driver arrived at the hospital car park heading URGENTLY for the minor injuries unit with an extremely sick/poorly child the signs would be impossible to read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located and there are no terms and conditions. The signs in the main car park are on poles SEVEN FEET in the air and the terms and conditions are in such a small font that they are impossible to read. (photos attached.)

As a result, any driver would not have a fair opportunity to read about any of the terms and conditions involving this 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

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 poorly placed – particularly to a driver entering the site or leaving their vehicle. 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. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

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 operator’s 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.!

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.”

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole (SEVEN FEET IN THE AIR AS IS THE CASE AT RUGBY ST CROSS) 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 and with fewer words. 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 an example of a binding case law from the Court of Appeal offers further supports my argument:

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.

Based on these points, it is believed that CPP are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions and driver safety. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that CPP be required to provide strict proof of exactly where the car was parked (from photos taken in the same lighting conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.

In summary, these points demonstrate the claim by CPP is invalid and should the claim continue, further action and evidence requested in this appeal is required from CPP.

Smelly_Dog

4) CPP have provided no evidence that the ANPR system is reliable. The 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 require the Operator to 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 the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed
when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
CPP has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

5) 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. NO NTK HAS EVER BEEN SENT/DELIVERED/RECEIVED!

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. NO NTK HAS EVER BEEN SENT/DELIVERED/RECEIVED!

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.''

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.

6) CPP have failed to produce an explanation of the allegation nor have they produced any evidence, other than a PCN Reminder which is a vague template despite a written request for them to do so.
In my appeal sent to CPP on 19/4/24 I requested the above. They have not provided the requested information.

7) CPP have failed to produce a close-up actual photograph of the sign they contend was at the location on the material date as well as any images of my vehicle despite a written request for them to do so.

In my appeal sent to CPP on 19/4/24 I requested the above. They have failed to provide the requested information.

8) CPP have failed to produce any evidence of the actual grace period agreed by the landowner despite a written request for them to do so.

In my appeal sent to CPP on 19/4/24 I requested the above. They have failed to provide the requested information.

9) Lack of consistency with the name of the operator pursuing the charge.


CPP informed me on 26/04/24 in their appeal rejection letter that “ParkingEye have placed this charge on hold for 28 days.”
This in a letter with a CPP Letterhead. I have no idea who or what ParkingEye have to do with anything? The PCN reminder and another two letters have all come from CPP on CPP letter-headed paper.

I trust that this information will help the assessor come to a conclusion and look forward to receiving your reply.


Yours Faithfully,

XXXX XXXX