UKPC PCN | Court Claim

JN33

Coupon-mad said:

Ok - so compare the NTK to the 'NTK pictures' thread. It's linked in the Newbies thread for good reason and UKPC ones are shown.

Also why is she accepting that she forgot?

Why not instead put the burden on UKPC? Add a point and put them to strict proof that there was a keypad in the reception that day and that it was working. That's what I'd do.

They are identical, like for like wording. 

She's not accepting, she's happy to leave and forget all letters - but i'd rather fight it properly. 

I can add #4 and make that case, thank you. I'll revise the template. 

Coupon-mad

Identical to which one? Do I only show a POFA version of a UKPC one?   If so, then it is capable of keeper liability.

JN33

Coupon-mad said:

Identical to which one? Do I only show a POFA version of a UKPC one?   If so, then it is capable of keeper liability.

I linked the picture; 
https://us.v-cdn.net/cdn-cgi/image/fit=scale-down,width=1600/https://us-noi.v-cdn.net/6031891/uploads/editor/7v/bhd1jlsjpfax.jpeg

KeithP

JN33 said:

Coupon-mad said:

Identical to which one? Do I only show a POFA version of a UKPC one?   If so, then it is capable of keeper liability.

I linked the picture; 
https://us.v-cdn.net/cdn-cgi/image/fit=scale-down,width=1600/https://us-noi.v-cdn.net/6031891/uploads/editor/7v/bhd1jlsjpfax.jpeg

But why didn't you link to the post where you found that image?
On that post it clearly states - "UKPC - POFA version 2023"

Now... what's your question?

JN33

KeithP said:

JN33 said:

Coupon-mad said:

Identical to which one? Do I only show a POFA version of a UKPC one?   If so, then it is capable of keeper liability.

I linked the picture; 
https://us.v-cdn.net/cdn-cgi/image/fit=scale-down,width=1600/https://us-noi.v-cdn.net/6031891/uploads/editor/7v/bhd1jlsjpfax.jpeg

But why didn't you link to the post where you found that image?
On that post it clearly states - "UKPC - POFA version 2023"

Now... what's your question?

Correct it's the 2023 version, which seems the same for 2024 so far. 
The question was is my NTK PoFA Compliant or not - but since seeing the thread, it is.

I will revise my template with a point about proving if the tablet was working to validate parking or not and will post it here before starting my POPLA appeal. 

Coupon-mad

JN33 said:

KeithP said:

JN33 said:

Coupon-mad said:

Identical to which one? Do I only show a POFA version of a UKPC one?   If so, then it is capable of keeper liability.

I linked the picture; 
https://us.v-cdn.net/cdn-cgi/image/fit=scale-down,width=1600/https://us-noi.v-cdn.net/6031891/uploads/editor/7v/bhd1jlsjpfax.jpeg

But why didn't you link to the post where you found that image?
On that post it clearly states - "UKPC - POFA version 2023"

Now... what's your question?

Correct it's the 2023 version, which seems the same for 2024 so far. 
The question was is my NTK PoFA Compliant or not - but since seeing the thread, it is.

I will revise my template with a point about proving if the tablet was working to validate parking or not and will post it here before starting my POPLA appeal. 

No.  Re-read what I said. Proving it was THERE on that day too.

LDast

POPLA will be useless in this case. It is a UKPC PCN. Just wait out the useless debt collector letters, wait for the inevitable claim form and then defend with the robust template defence. In due course, you will see the OPs username in lights in this thread:

DCB LEGAL RECORD OF PRIVATE PARKING COURT CLAIM DISCONTINUATIONS

OP, you need to thoroughly read the Newbies/FAQ thread and follow the guidance there. You've tried Plan B. You said Plan A is hopeless. Skip Plan C and wait for Plan D where you will eventually succeed in seeing this scam off.

You've come here for a reason. You're either low-hanging fruit on the gullible tree and will poop your pants once the useless debt collector letters start coming in or you will take comfort that you are now in a steep learning curve about the practices of these scammers and the legal process involved. 

You won't pay a penny and you'll be much wiser after the process.

JN33

Coupon-mad said:

No.  Re-read what I said. Proving it was THERE on that day too.

I have added in another clause for "The registration of a vehicle to use the gym ‘outside of hours’ is not clear".

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from UKPC on the following points:

1. I, the registered keeper as well as the drivers applicable to drive said vehicle are ALL members of JD Gyms, located on Phoenix Retail Park, WV1 1NT

2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

3. The registration of a vehicle to use the gym ‘outside of hours’ is not clear 

4. 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

1. All drivers able to use vehicle XXXXXXX are all PAYING members of JD Gym, which is located on the Phoenix Retail Park, WV1 1NT. The registration input must not have registered on the tablet within JD Gyms properly to ensure that parking was valid. I have proof of paying memberships. 

2. 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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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

3. The phrase “Gym members must be registered during these times” is open to interpretation, what do I register and where do you register - it’s not clear. There is no machine or sign on site to register a vehicle or to identify where to validate parking. 

The signage is not clear and is not clearly eligible when entering the car park or from parking bays. There is no clear signage to indicate where or how to register parking. Please refer to point 4 below in regards to signage issues.

Please provide proof that however you register for parking was available on the date of this offence and proof that this machine was in working order. 

4. 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

The signs also do not state you are REQUIRED to fill out anything in order to gain access to the 24-hour JD gym in order to validate parking. 

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+sign_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:

https://sgsgraphic.com/blog/letter-visibility-chart/#:~:text=The distance for the best,up to 200 feet away.

''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.


Here is an up close picture of the on-site signage. 

JN33

Coupon-mad said:

No.  Re-read what I said. Proving it was THERE on that day too.

I have seen an old post from you where you said: 
"Whilst the cancellation part isn't relevant, the 'Information' section is, because requiring people to have to use an iPad to input their registration every time can be argued to be a Distance Contract, and the consumer law on that sort of contract concluded by digital inputs by the consumer, requires the trader to produce a receipt for the transaction (input) by durable medium.  THat can be an email but has to be supplied to confirm the digital input.

No parking firms do this.  The lack of receipt makes it impossible for a gym visitor to know which days the system has worked and which days it hasn't, and a blip can certainly be temporary - a connectivity dropout for a minute would catch at least one person and they would never know because there isn't even a confirmation message, let alone the required receipt supplied 'by durable medium'.

As such, that leads neatly to an argument that the term that requires a gym member (rather than having their VRM exempted on a whitelist from day one, as staff at the gym do, and is easy for parking firms to record) to have to input their VRM correctly every visit, is a 'concealed pitfall or trap'.  That was a consideration in the Beavis case, and even if it's not deliberate, it places an imbalance and unfair burden upon the consumer.  That's a breach of the CRA 2015 - unfair terms and notices are not enforceable.

The MHCLG draft Code of Practice, at the start, lists the applicable laws identified as relevant and one of those laws listed in the Draft Code, is indeed, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013...so clearly the new statutory framework will be requiring PPCs to comply with the law they've not been complying with, to date."

Can I use this, or shall I go with the below where I act as though I have no idea how to register as it's not clearly written, I see no signage regarding where to input a VRN to validate/register parking after certain hours?

Coupon-mad

Nope because it's no longer listed by the DLUHC in the latest info re the Code, AFAIK. 

And it's waaaay over any POPLA Assessor's head and won't even be considered.