GroupNexus (CP Plus Ltd) - Admitted Driver In First Appeal

BritishLion

Hello,

My father-in-law has picked up a parking ticket at a local hospital controlled by Group Nexus. Unfortunately I did not find out about this until after he had submitted his appeal in which he has admitted he was the driver. The PCN states the charge is for parking in a staff car park.

The basis of his appeal was that he was attending an appointment, and after driving round the car parks that were full, he parked on the road along with other cars, and not in a staff car park. He stated there were no signs to say he couldn't park where he did, nor that any charges would apply for parking there.

As expected, his appeal has been rejected and they have provided a POPLA code should he wish to appeal to them.

Given he has admitted it was him that was driving and already submitted his reasons for appeal, does this leave him any change of getting this cancelled?

Thanks,

BL

Gr1pr

Check his NTK PCN letter to see if i complied with POFA 2012, because if it did then admitting that he was driving i irrelevant, no foul

Regardless , he should complain about it to PALS ASAP and try to get it cancelled , the sooner the better

Coupon-mad

Yep, complain to PALS urgently (google it).

Then try POPLA - the Code lasts until day 33 so he has a month to try that, but complaining to PALS is FAR more important and likely to work.

He'll never have to pay this, BTW. Not even if losing at POPLA. Hope you've read enough Group Nexus threads to be able to confidently tell him that?

If it were me I'd do the PALS complaint for him but in his name (your email address).

And if that fails, in May appeal as him but this time your email AND changing his postal address to yours, as well. In the appeal state "I've moved in with my son/daughter and my address for service is xxxxxxx xxxxxx xxxxxxx" (your address).

That way, you get any emails and letters & can truthfully tell him he'll hear no more. Ask us at each stage. Dead easy, even if a court claim arrives. Don't let him deal with it.

BritishLion

Many thanks both. I've now got the letter and it isn't POFA 2012 compliant. So next step is to contact PALS, but should I put the POPLA appeal in as well in parallel? I have a template I previously used with NCP that won, so can use that but maybe leave out point 2 as he has admitted driving?

https://forums.moneysavingexpert.com/discussion/comment/81452438#Comment_81452438

Gr1pr

No problem in doing both, but maybe leave a gap, but do not miss the deadline

Coupon-mad

"should I put the POPLA appeal in as well in parallel?"

No. I already said which order to do everything, including which month to do it.

BritishLion

To update, the appeal to PALS has gone in. Here is a copy of the email we sent:

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Dear PALS at <Hospital Name> 

I would like to make a complaint about a parking charge notice and subsequent threatening letters I have received from Group Nexus, whom now are asking me to pay the extortionate sum of £130.

The Company claim I parked in a Staff Car park when I visited the Hospital on <Date>, but I did not. I had an appointment at the Diagnostic Centre and tried to park in the public car park in front of the Maternity Unit, but it was full. I therefore drove to the main car park, but this was also full. I did not wish to miss/cancel the appointment for health reasons and also to avoid abortive costs for the Hospital. I drove along <Road Name> and parked on this road adjacent to <Road Name>. I parked so I was not obstructing access to buildings, car parking areas or other vehicles, and there were other cars parked on <Road Name>. I had parked in this location previously on visits to the Hospital, when the visitor car parks were full, without being issued with a charge notice. If I had not parked on <Road Name>, in what I thought was an acceptable parking spot, I would have missed my appointment.

I did not see any notices advising that the there was a charge to park in this particular location. If there is a charge to park on this part of <Road Name>, there were no notices/signs advising where to pay, how to pay and how much to pay. In addition, I did not see any notices / signs advising parking was prohibited on the part of the road where I parked. There were signs advising not to park on double yellow lines or on areas crossed hatched yellow, but there were no such markings on the road where I parked. There was a sign adjacent to a part of <Road Name>, close to where I parked,  where there were double yellow lines, advising no parking was allowed, but I did not park in this location.

I did make an appeal to the Company on the basis of the above facts, but my appeal was dismissed.

I would like to request that you have the Company cancel this parking charge notice, which is nothing more than a ridiculous attempt at unscrupulous extortion, and for them to cease all communication with me immediately. 

Yours sincerely,

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

One other point to note, I have now been give the first letter that was sent and that does appear to be POFA complaint, so I am assuming this changes the next step as the appeal to POPLA I was putting in was based on the NtK not being compliant.

I have seen in other threads it is advised just to ignore the letters now (the legal action pending letter has already arrived). Is this still the case?

POFA Example:

https://forums.moneysavingexpert.com/discussion/comment/80395545#Comment_80395545

Letter received:

BritishLion

Oh and the 28 days for POPLA appeal is 6th May, 33 days 11th May.

Coupon-mad

POPLA Codes last 33 days, so ignore the 28 days.

If you do try POPLA (in ten days time), your main point would be arguing - with photos - that the car wasn't in a staff car park.

BritishLion

Latest update, PALS have not got back to us on our complaint, so unless the call into them tomorrow prompts action, the following appeal will be going into POPLA. Is there anything that needs changing?

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

On the <DATE>, GroupNexus issued a parking charge to myself (as keeper of the vehicle) highlighting that the above mentioned vehicle had been observed arriving and leaving the site with no record of a permit or payment. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

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

1. The registered keepers car was not parked in a designated car park and was parked in accordance with the signage..
2. No evidence of Landowner Authority.
3. 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.

Please see below for details:

1) The registered keepers car was not parked in a designated car park and was parked in accordance with the signage.

On the date in question the registered keepers car was on site but not parked in a designated car park. There is a roadway that goes through the site, and off that roadway there are a number of designated car parks. On the roadway, there are signs that state the following:

"No unauthorised parking on this roadway. Please see main signboards for parking regulations"

On the main "No Parking" signboards it states the following:

"No parking on single/double yellow/red lines or in any hatched areas"

On the entrances to designated car parks, there are signs that state:

"This car park is ticketless & uses automatic number plate recognition. Do you pay until you leave the hospital" or "Parking for authorised staff permit holders only"

At no point during the time on site did the registered keepers car enter one of the designated car parks, so was therefore the registered keeper was parking on the roadway.

The location on the roadway that the registered keepers car was parked, was not on any yellow or red lines nor was it on a crosshatch area, therefore the car was parked in accordance parking signs in that area.

Photographic evidence is provided of the following:

1. The roadway sign stating "No unauthorised parking on this roadway".
2. The main "No Parking" signboard stating no parking on yellow/red lines or in any hatched areas.
3. Sign on the entrances to a designated car park off the main roadway, stating "Parking for authorised staff permit holders only".
4. The location the registered keepers car was parking on, clearly showing there are no yellow/red lines or crosshatched area.

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 - 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

3) 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 purpos

es 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.

Coupon-mad

Remove that final sign! You'd be assisting them with that image.

Also remove this as it detracts from the point:

"On the entrances to designated car parks, there are signs that state:

"This car park is ticketless & uses automatic number plate recognition. Do you pay until you leave the hospital" or "Parking for authorised staff permit holders only"

At no point during the time on site did the registered keepers car enter one of the designated car parks, so was therefore the registered keeper was parking on the roadway."

And remove the really old BPA Code para 7 quotes which are years out of date and replace them with quotes from the current Joint Code clause 14 and Appendix G about landowner authority.